justice scalia much his senior has distinguished himself for many years in writing opinions that basically mobilize the base. "the wall street journal" has an editorial this week purporting to criticize justice ginsberg's opinion as being overblown and seeking to mobilize the progressive base against the court's majority. and i thought, haven't they been listening to their friend for the last 30 years? >> before you came, i have been leafing through the new book by lawrence tribe and joshua mat. reminding us that justices can frame the way we live. so how is the roberts court framing the way we live? >> let's take race. let's take how the roberts court a year ago with five members of that majority framed the story of america and race. if you read that opinion, problem solved. we had a problem once. we had sort of a serious problem once. low and behold shs the problem is over. the law that was powerful tool to deal with racial discrimination is outdated. there's no need for it anymore. congress has stubbornly refused to bring it up to modern reality and so that part of the law the formula t

she knows how to work the -- >> you have now written books about justice o'connor, scalia. is justice kennedy scratching his head and saying, i am the most important justice. i'm in the majority. why is nobody writing a biography about me? is anybody planning to? >> not me. >> here he is, the new hero of the gay rights movement. the man who will probably bring same-sex marriage to the u.s. it strikes me as curious he is not getting attention in a personal way like that. >> i think he is. he gets magazine profiles. we have all done a version of the kennedy court. to sustain a book, you want someone whose life story tends to be broader than what she is doing on the court. sandra day o'connor offered that. so does sotomayor. i'm sure the seeds of the kennedy book are in east -- the mind of some academic. when same-sex marriage returns to the supreme court, i can't imagine anyone other than kennedy will take the lead on same-sex marriage. there might be another moment to talk more about him. he turned 78 this month. which in supreme court years is young. he will be with us, he w

justice scalia, one indication of how this is not a partisan divide is how powerfully the conservative justices have opposed the notion that institutions can sue one another. justice scalia wrote in windsor also june of 2013 that the framers, quote, rejected a system in which congress and the executive can pop immediately into court in their institutional capacity whenever the president implements a law on a matter that is not to congress's liking. i think that between the five justices who took the position in holingsworth and in windsor, only justice alita has suggested that he would support such a theory and i think my distinguished colleagues here being quite capable and widely admired scholars are able to come up with a constitutional system that makes some sense, but i think they recognize they are criticizing and both have been critics of the supreme court's decision in the standing area, that they're not suggesting what's now the law but what they would propose to be the law. chief justice renquist said in the case of rains versus byrd which rejected that members of the house a

about a week before there was a green house gas case where justice scalia starts reading the majority opinion and i was downstairs. you guys were upstairs and scalia very rarely is on the side of the environmentalists so you assume epa will lose and there's rhetoric about how the regulation goes too far and in the written version, about 25, 26 pages in, after saying why epa loses, he turned and said, however, it could be approved against power plants under a different regulation and a different argument. he said upstairs, epa basically won most of this case. but that was a really interesting scramble because a lot of people put stories up on the web right away saying court strikes down greenhouse gas regulation based on what the court seemed to say and then at the end of the opinion, they basically said, well, actually, epa won most of the case. i'm glad you didn't pick it because it was all around a lot at the beginning. >> like the aca decision two years ago. the same thing happened when the chief justice went into all the things wrong with the decision and said, but it's constituti

she knows how to work the -- >> you have now written books about justice o'connor, scalia. is justice kennedy scratching his head and saying, i am the most important justice. i'm in the majority. why is nobody writing a biography about me? is anybody planning to? >> not me. the new hero of the gay rights movement. the man who will probably bring same-sex marriage to the u.s. it strikes me as curious he is not getting attention in a personal way like that. >> i think he is. he gets magazine profiles. we have all done a version of the kennedy court. to sustain a book, you want someone whose life story tends to be broader than what she is doing on the court. sandra day o'connor offered that. so does stotmayor. sotomayor. i'm sure the seeds of the kennedy book are in east -- the mind of some academic. i can't imagine anyone other than kennedy will take the lead on same-sex marriage. there might be another moment to talk more about him. he turned 78 this month. which in supreme court years is young. he will be with us, he will probably be with us for another 5-10 years or so. wer

justice scalia, one indication of how this is not a partisan divide is how powerfully the conservative justices have opposed the notion that institutions can sue one another. justice scalia wrote in windsor also june of 2013 that the framers, quote, rejected a system in which congress and the executive can pop immediately into court in their institutional capacity whenever the president implements a law on a matter that is not to congress's liking. i think that between the five justices who took the position in holingsworth and in windsor, only justice alita has suggested that he would support such a theory and i think my distinguished colleagues here being quite capable and widely admired scholars are able to come up with a constitutional system that makes some sense, but i think they recognize they are criticizing and both have been critics of the supreme court's decision in the standing area, that they're not suggesting what's now the law but what they would propose to be the law. chief justice renquist said in the case of rains versus byrd which rejected that members of the house a

or this is really interesting, good as far as justice scalia would like to go, who ended up this term writing concur ens that sound often like defense. >> right. three cases this term he concurred with the majority but in a very angry way. i agree with the result you've reached but i'm furious about it. it is interesting. 65% of the cases were unanimous, highest since the 1940s. >> how do you read chief justice roberts method here. >> i'll tell you, this is just an opinion, but i think justice roberts is concerned about the reputation of the court. in a world, political world, that we know, where there is so much polarization. so much polarization that congress's reputation is severely damaged. as is the president. >> he doesn't want the supreme court to have a reputation for being political. he wants the court to maintainity authority as a legal arbiter. >> exactly. meanwhile, justice scalia is making the counter argument, as he said explicitly, we are shirking our duty, quote, unquote, but not pointing out constitutional error. that's why justice scalia is so furious. >> collin, i k

justice scalia, one indication of how this is not a partisan divide is how powerfully the conservative justices have opposed the notion that institutions can sue one another. justice scalia wrote in windsor also june of 2013 that the framers, quote, rejected a system in which congress and the executive can pop immediately into court in their institutional capacity whenever the president implements a law on a matter that is not to congress's liking. i think that between the five justices who took the position in holingsworth and in windsor, only justice alita has suggested that he would support such a theory and i think my distinguished colleagues here being quite capable and widely admired scholars are able to come up with a constitutional system that makes some sense, but i think they recognize they are criticizing and both have been critics of the supreme court's decision in the standing area, that they're not suggesting what's now the law but what they would propose to be the law. chief justice renquist said in the case of rains versus byrd which rejected that members of the house a

justice scalia in two big gay rights rulings, he turned out to be right. question still focusing on hobby lobby, the cases for separate issues, any one of which could have been determinative, whether a corporation was a person for the religious freedom restoration act, whether the law imposes stone statue -- substantial burden on their religious it was thed whether least restrictive means, how do you deal with all that? is that only of interest to legal geeks? how do you make it understandable? >> i definitely had to get all that in my story. i write in part for lawyers. the legal issues are definitely what they are interested in. i write for business papers, legal papers. we have a daily business paper in oklahoma city where hobby lobby is based. that story had a different focus and came out looking different than our legally -- then our weekly legal papers. you have to sort of explain what it means in a way that is understandable for lawyers and others who read the paper. it is not just lawyers. to understand what the impact of it means. there is a lot o

and justice scalia is furious because he tpaelsz like roberts is accommodating the other side. >> i wasng to say, to elaborate on dan, that's the big irony here, the effort to keep the court here from seemingly political, and it ends up with roberts choosing the narrow routes that achieve a policy outcome but don't seem to be based deeply in the constitution. >> give us an example here. where is a case where that happened where you think scalia was right and roberts settled for half a loaf that he should not the have? >> well, this was obviously a decision that was unanimous that struck down the administration's illegal recess appointments and everybody agreed they were illegal, and this was clearly a decision that sort of made up, you know, a line out of thin air. >> but nonetheless, roberts got 9-on that rebuke, and that included two appointees that the president made. isn't that a significant statement on the law? >> it's more of a rebuke to the obama administration than a revitalization of the constitution, which is what they are supposed to be doing, and they are reading the text a

justice scalia in two big gay rights rulings, he turned out to be right. >> a broader question still focusing on hobby lobby, the cases for separate issues, any one of which could have been determinative, whether a corporation was a person for the religious freedom restoration act, whether the law imposes substantial burden on their religious beliefs, and whether it was the least restrictive means, how do you deal with all that? is that only of interest to legal geeks? how do you make it understandable? >> i definitely had to get all that in my story. >> i definitely had to get all that in my story. i write in part for lawyers. the legal issues are definitely what they are interested in. i write for business papers, legal papers. we have a daily business paper in oklahoma city where hobby lobby is based. that story had a different focus

and one wonders why justice scalia hasn't been prosecuted already. since he's given many a harangue. but anyway, he was -- i went to the trial at the d.c. superior court and this judge clearly thought this was not a big deal. no jail time. and he really wanted the u.s. attorney to drop the whole thing. the lawyer for the court, the general counsel of the court, ethan tory was there and very much involved in the hallway negotiations over this, and anyway, newkirk was -- he was sentenced to time served. he had actually been held overnight after the incident and but that was enough punishment. the judge felt. >> i thought mccutchen is one of those -- several cases like that this term, a good news case but for a select group of people. i don't want anybody to raise a hand here but there is apparently some people in the country who feel that their free speech rights are stifled if they could not give more than $123,000 this year to the candidates for congress. now, as i say, you can some of you fit this category can just smile. but don't identify yourselv

even justice scalia in his book on interpretation gives an example of an arizona statute which, becausef where the commas were placed, they had to repeal all of the laws in the state. nobody believes that you can take some kind of letter listed meaning so contrary to what everybody understands. >> let me add to this 2-1 decision. sometimes, i think you lawyers go full-court. it does not happen very often. will it happen this time? if it does, what will be the likely outcome? >> not only do all 11 active judges get to participate, but the two judges on the panel that have taken senior status, they also get to dissipate. -- participate. unless someone is recused for some reason, there will be 13 judges that will hear this case. >> they will hear it. >> i believe the government will petition and i'm almost certain the court will grant it. i think it is very likely that the full d.c. circuit court of appeals will agree with the fourth circuit, that the government's position is correct and it is a ridiculous, truly ridiculous reading of the statute to assume that some americans don't get the

. >> i think that's fair, justice scalia. one of the things that you run into if you try to sort of get at this statute the way that justice kagan is suggesting is that not everybody exactly agreed as to what the pre-smith case law was. you described the pre-smith case law in your opinion in a certain way. justice o'connor described the pre-smith case law in another way. so it's a little bit difficult to try to say, as justice kagan's question would suggest, that rather than just apply the statute as written, we should really sort of just go back and apply pre-smith laws if this were -- >> well, it is applying the statute as written. the statute as written this not a question of legislative history the statute as written points back to pre-smith law. it says -- that's what we mean. >> well, you're right, justice kagan, in the purpose part of the statute it says -- what we mean to do here is basically restore the pre-smith law. but it also accompanies that purpose statute with operative language. and the operative language, whi

it's like even justice scalia on his book gist the example of an arizona stat tuse which because of where the commas replaced appear to repeal all the laws in the state. nobody believes that you would take some kind of literalistic meaning that is so contrary to what everybody understands. >> let me go out to this 2-1 decision by this court here. sometimes, i think you lawyers call it enbalk the full court takes it up. doesn't happen very often. will it happen this time? >> in this circuit not only did the 11 all 11 active judges get to participate but the two judges who were only panel who have taken senior status semi-retirement they also get to participate. so unless someone is recused for some reason there will be 13 judges that will hear the -- that will hear this case. >> and they will. >> i believe that the government will petition and i am almost certain that the court will grant it. and i think it is very likely that the full d.c. circuit court of appeals will agree with the fourth circuit that the government's position is correct and that it's a ridiculous -- truly ridiculous re

this is a case justice scalia wouldn't say is okay. if you were teaching a civics class you'd say here's what the law said. here's what the executive did. that might go too far. there's a little bit of an argument here, about their having standing, but i think in the end it's going to be -- the courts will say you guys fight it out. >> even for constitutional law scholars who have serious, serious problems with the issue of presidential overreach it seems like there are some very problematic elements to this particular suit. there are actually republicans who agree with that, although in a surprising way, five exactly, i think we have a list of them who voted against this suit. but most of them only did it because they think it didn't go far enough. what do you make of that, mark? >> look, the reality is, i agree with ari it's boring. i agree that the base of the republican party will be fired up by this. there's a need on the side of the republican party to galvanize the focus of their base voters and a lot of these targeted states an

are many things that can be said to argue for or to undergird decision but i do think that when justice scalia said after writing it that it was his indication of his vision of original as i'm that the idea that the only legitimate way to look at the constitutional provision is to ask what it meant the time of the framing i think that is an error. and i took that challenge and went back and looked at what went on around the time of the drafting of the second amendment and it was really striking. the founders coming as the data out of the revolutionary period in the turmoil with deeply, deeply be concerned about these militias as they are in that amendment described well regulated militias and they passionately care about them and they were bulwarks of liberty against the potentially tranquil kingdom or tyrannical central government. they were worried in both of those cases that there might be what is called a standing army which is like professional soldiers like the army that sailed away a few years before. it's important to understand and my real point is that there is a limit to how much we

. >> they are citing various opinions, one written by justice scalia and one written by justice kay began, who take dim views of bureaucrats rewriting laws that don't turn out as they expected. so given that out there as well, why are you so confident that your legal basis is sound? >> the other legal expert i would cite is the district judge who ruled in this case who would anticipate that the government would implement the law in line with congress' intent. and this judge, who ruled in this case at the district level, admittedly, did say there's no evidence in the statute itself or the legislative history of any intent by congress to support the claims that are made by the plaintiff. so i guess to put it more simply, the view of this administration as agreed to by this judge, the way we have implemented the affordable care act to maximize benefits for people across the country, millions are benefiting from this right now, that that is cleanly in line with the easily understood intent of the united states congress. >> tomorrow on "washington journal," connecticut congressman jim himes lo

you see justice scalia, this term. some of the unanimous decisions.has filed concurrences that really feel more like defense. he is speaking to a group of americans. a group of constituents. about the loss of credibility of the court. like he talked on the abortion cases, that this court has sort of gone off on an exceptional brand of abortion, first amendment, jurisprudence. really specific to abortion. and he is speaking to them. speaking to the concerns that they have. it's just that he is on a different wing of the court from some of the other members who are speaking to completely different constituencies. they're both speaking to, two different groups of people. and in doing that, they're really reflecting how driven be are over these hot button social issues. >> wonderful institution, just last weekend, couple days ago. giving a major presentation. i was joined there by -- former supreme court justice sandra day o'connor, spoke after i spoke. had a chance to see her over the weekend. preparing for our conversation was thinking about the fact th

the example, the other way, i think is when justice scalia wrote his decision in the united states versus windsor saying this is going to cause every state marriage ban to be overturned. >> that's what's happening. if you over read the majority opinions in case like hobby lobby, you really run the risk of creating the very sort of broad expansion of the free exercise clause that, you know, wasn't necessarily part of the majority. >> so trevor burris, you can't use hobby lobby to play out scenarios where believers in different religions might deny employees all sorts of things? >> there is more of an ability to do that now. we are talking about the court applying a 20-year-old statute that was passed by a nearly unanimous congress. there wasn't an excurs. they were doing what congress told them to do. for the business question, the way we see it, more the way cato or alito sees it is it still the rights of the people through the corporation that are being protected. the corporation, it's more of that reasoning which is what we wrote our brief about, when the green family or the hahns or me

i think that's a quote from justice scalia. justice kennedy uses the word significant nexus. to go back to your question and i think, mr. chairman, may get to yours as well, significant nexus is a new thing that the supreme court gave us. so we're trying to find out how, the purpose of the executive branch putting out a proposed regulation -- and i have, you know, dicta here from chief justice roberts telling us to do these regulations. one more second. so nexus is definitely hydrology. you can make the argument that rain falling is connected somehow. so one of our jobs in this rulemaking, one of the things we're most interested in getting back, more input on is how do we define significant? everything might be connected but it's not all significant. so back in the old regulation it said if it had any impact, probable or any impact on downstream interstate commerce what we're trying to use is the say evens of hydrology and saying it has to have certain characteristics that are identifiable by a hydrologist that there's enough flow that's frequent enough and enough that it car

justice scalia in con isn't said -- dissent said you are opening the law to gay marriage. he talked to supreme court clerks who said it's very different for justice kennedy to say on the one hand the state can't criminalize private sexual conduct that is protected by the constitution and an entirely different thing for him to say, in their view anyway, that he, that the states must, bless these unions. because justice kennedy's also a federalist, meaning he think that is the rights reserved to the states ought to be, you know, protected. and so he, so he said, no, i don't -- i wish you luck, but i think this is too risky. to your point about is, was ted olson's involvement, you know, sort of game changing, i would argue that it is. i would argue that it was. and here's why. it's not that there aren't any republicans out there ever who ever came out in support of marriage equality. i mean, dick cheney had. not a constitutional right, but at least in his view the states ought to legalize same-sex marriages. but what was game changing about olson is, one, he was making a legal

. >> none other than justice antonin scalia has made the point that the judiciary traditionally does not hear cases of political disagreement between the other two branches. this lawsuit is nothing more than a partisan bill to rally the republican base and for some -- for some, it doesn't go far enough. >> the proposed lawsuit also prompted the former speaker of the house to issue a challenge to the current speaker earlier today. >> if we just want to talk about the lawsuit it behooves the speaker of the house to say impeachment is off the table. i hope we can hear that soon. if you don't want to hear people use the word impeachment, then tell them impeachment is off the table. that's what i had to do. that's what the speaker should do. >> hours later and momentings before the votes, speaker boehner stuck to the script, it's about the rule of law. >> are you willing to let any president choose what laws to execute and what laws to change? are you willing to let anyone tear apart what our founders have built. >> president obama meanwhile fresh from the news, the economy grew at a heal

justice scalia is wrong on a number of issues if you are a liberal but clarence, susan just wrong. he is a sellout. he's got psychological problems. you get a lot of that. black conservatives get psychoanalyzed. >> host: they do. allen west. >> guest: that's what the reaction typically has been. now that is a reaction usually coming from black -- when i engage average blacks who aren't in the business of punditry or journalism or politics i get quite a different reaction. it's just common sense of course. who thinks differently? so there is this disconnect between your naacp national urban leg and rank-and-file blacks. i think they are wide differences and it's unfortunate to me that many in the media continued to run to the jesse jacksons and the al sharpton to speak on behalf of black swan over the past decades the interest of the jesse jacksons and al sharpton's has divert widely from what the black underclass in particular in terms of public policy. >> host: before we go to break and after a comeback to break we will talk about more of these third rail issues that you dare to t

other three liberals plus scalia who is invariably more protective of privacy rights from the government, and in that sense more liberal than breyer or pretty much any other justice. you wouldn't with know that from -- you wouldn't know that from the reputation that scalia has nurtured as a radical, uncompromising conservative. just yesterday, for example, elena kagan led a 5-4 decision that ruled against immigrant children who had the bad luck to turn 21 before their parents who had green cards got to the head of the slow-moving waiting line for an immigrant visa. kagan's opinion was joined by anthony kennedy -- a republican -- ruth ginsburg, a democrat. and kagan geas on croon -- conclusion was written by roberts and joined by scalia. the dissenting justices who ruled in favor of the boy who had turned 21 after his mom who had immigrated from el salvador in 1998 had waited in line for eight years, but it was his misfortune, he turned 21, he had to go to the end of the line. they were also unlikely bedfellows. clarence thomas, samuel alito, stephen breyer and sonia sotomayor. that was not that atypical. in lots of difficult and divisive cases, you get these unus

it justice scalia and company had decided this case on a broad, open, freedom of religion grounds it uld have been written, a descent, the chief justice. i think to keep him in the full day decided on this very, very narrow round. can an edict by hhs trump the statute written by the congress? answer, no. neil: really quickly, always at the top. apoplectic. >> i was surprised. it was unprofessional to be so over the top. long lines were short lives. better reasons, less emotional ones have long lives. neil: it almost seemed like the florida recount. >> it almost seemed like that kind of the scent. somewhere somehow somebody will find the money for these people to have their contraceptive services. no one says they can't have them these can't force the employer pay for it. neil: i even understood that. last night you told me. all right. when we come back, here is what happens when your city can't pay its bills. all of a sudden you can't get a lot of basic services. so a lot of folks in detroit are without water as we speak, not because they are not in the water bills, because the city i

even supreme court justice scalia, joined by chief justice roberts and chief justice thomas, wrote that the frase framers of the constitution emphatically rejected a, quote, system in which congress and the executive can pop immediately into court. in their institutional capacity, whenever the president implements a law in a manner that is not to congress' liking, end quote. . andrew c. mccarthy wrote recently that this lawsuit is a, quote, classic case of assuming the polls of meaningful action while in reality doing nothing, end quote. heaven's to betsy, how much more do we have to hear that this will not work? a recent poll by cnn found that 57% of americans oppose the lawsuit. yes, the american -- majority of the american people recognize it for what it is, political theater. they recognize this lawsuit as not only distraction from the real problems that plague our nation but it is designed to appease radical republicans clamoring for impeachment. the rules committee, which i am ranking member, was the only committee to consider this lawsuit. under regular order of the house, -- und

texas, justices couldn't scalia said in dissent your open door to gay marriage. polpaul said that i should filee case but he said he talked to supreme court clerks who said it's very different for justice kennedy to say on the one hand the state can't criminalize private sexual conduct that is protected by the constitution. and it's entirely different thing for him to say, in their view anywhere, that he said that state is not. because he's a fabulous which means he thinks the states ought to be protected. so he said no, i wish you luck but i think this is too risky. to your point about, with ted olson's involvement serve game changing, i would argue that it is. i would argue that it was. and here's why. it's not that the our and republicans after ever whoever came out in support of marriage equality. i mean, dick cheney has, not a constitutional right but in his view the states ought to legalize same-sex marriages. but once again changing about olson is, one, he was making a legal argument and he came from, he was a card-carrying are less society member these are

>> could you imagine if justice scalia would say the same thing about the women on the court, that theyther words, they're not reasonable. i can't imagine -- >> or rational. >> and rational. i can't imagine justices besmirching each other like this. she's also besmirching the court that she pre sides on, basically saying it doesn't really work because the guys i work with, they're not reasonable, they can't come up with a reasonable position on this. >> i don't think she said that. she said as a man -- >> let me just finish, juan. she's supposed to interpret these laws of the constitution with some regularity and due process here. isn't she sort of saying, keep men away from this court? in a way? that is how i took it. look, i get it. she's a fan of birth control. but she is an enemy to the bill of rights. and to civil rights. if she's going to give interviews and make comments like this. >> i think the disturbing point is that what you see over and over again is that one cannot empathize with somebody who is different from you. so using that logic, only black doctors should study sickl

justice scalia is wrong on a number of issues if you are a liberal, but clarence thomas isn't just wrong. he is a sellout. he has got psychological problems. that is what the reaction typically has been. that's usually coming from black elite. independent tree of journalism or politics i get a different reaction. there is a naacp rank-and-file and i think they are wide differences. and it is unfortunate to me that many of the media, many in the media continue to run to the house sharpton speak on behalf of blacks and over the past decade the interest of the jesse jackson and al sharpton is diverged wisely from what the black underclass in particular needs in terms of the public policy. >> host: before we go to break and after we come back we are going to talk about more of these issues that you dare to touch in this book. does it bother you when you hear the community rise up against you for what you say? >> guest: that would be a little melodramatic. no one likes to be called names. i don't believe that. but i believe these things need to be said. i don't think liberals and the policies

the opinion's author, justice scalia. >> i suppose you could say a law against human sacrifice would, you know, affect only the aztecs, but i don't know that you have to make -- you have to make exceptions. >> the decision was seen by some as an attack on religious freedom. enter democratic senator ted kennedy, and republican senator orrin hatch. the two co-sponsored the religious freedom act which slams the supreme court for its insufficient deference for religious exercise saying government should not substantially burden religious exercise without compelling justification. the law created a stronger protection than even what the first amendment provides. over the next couple years, it would be used by a number of different religious groups. >> for example, amish groups have used the law to fight requirements that they put orange safety triangles on their buggies, symbols they found offensive. more mainstream churches use the law to fight zoning rules that stop them from distributing food. >> while part of the law was overturned in 1997, it has largely been considered uncontroversia

c-span: of those three men, like judge silberman at the appeals court here or justice scalia at the supreme court or robert bork, the former appeals court judge--did they read all the same kind of things that you read? >> guest: i think some of them were moved to. yeah, some of them probably had already. i don't know. but they were interested. i mean, these are not just lawyers, these are not just legal thinkers. all of these people are what we would call intellectuals, namely have a very broad interest in ideas. and the thing they liked about being at aei is they were able to indulge that interest in ideas. c-span: do you have to be--i don't know how to ask this--do you have to be smart to be an intellectual? >> guest: it helps. c-span: and when i say smart, do you know what that means? is there a cut-off point at that iq level? >> guest: no. no. it means you have to be able to cope with abstract ideas comfortably--or uncomfortably sometimes, but that's all right too, wrestling with them. but, i mean, there are a lot of people, i suppose most people are--can get along very well without cop

i think there are years and years of decisions that justice scalia and others have signed their names to that basically endorse the chevron principle, which is you defer to the agencies if there's ambiguity. but i don't think there is that much ambiguity. >> they've got to agree to go en banc. in this case, this is so important, and i think so outrageous that they will want to take it and overturn it. >> here we have the examining rhetoric outside of the actual specific legislative hang wage of the bill. they examine that statement that max baucus made on the senate floor, which could not have been clearer. he used the phrase "all americans." the president's rhetoric on this could not have been clearer about the intent. what they can't find is a single member of congress at any point pointing to this and saying, why are we not providing subsidies for people under the federal exchange? not one person ever raised this in congress. >> you know, this is like congress made a typo and somebody really wants to get to this results says i caught you in a typo. >> i think when you rush legislat