here's what i've acknowledged, justice scalia, i guess this is important. we've acknowledged that the question of whether the mistake was reasonable would be relevant if at all at the remedy stage. so what you would do is you'd ask the question if this were a federal case where you had to reach the question, you'd ask whether the officer's mistake of law in this case renders suppression inappropriate. now i would add that holding that it did render suppression inappropriate would be an extension of the court's current good faith jurisprudence which thus has has held that good faith relies when an officer relies on legislature or court. >> so the most you can get from us is a remantd? >> that's right. >> just like the north carolina -- just let the north carolina court decide whether the remedy of exclusion should asupply. >> that's right. for example, justice scalia, i'm not sure if it's different if i said there's a constitutional violation i may or may not be entitled to a remedy for under chapman because the air was harmless or not. those are the kinds o

with respect, justice scalia, i'm not sure the court needs to do that. of course, i think the court can vacate and remand the judgment just as it does in newspaper rabble other times where it finds a problem with the lower court decision and therefore sends it back. even if this were purely a federal case, justice scalia, i would be saying the same thing. nobody has briefed or argued the good faith exception in this case. >> well, you have. you have. and you acknowledge that it applies to remedies. >> no, no, no. here's what i've acknowledged, justice scalia, i guess this is important. we've acknowledged that the question of whether the mistake was reasonable would be relevant if at all at the remedy stage. so what you would do is you'd ask the question if this were a federal case where you had to reach the question, you'd ask whether the officer's mistake of law in this case renders suppression inappropriate. now i would add that holding that it did render suppression inappropriate would be an extension of the court's current good faith jurisprudence wh

justice scalia again, you talk so what is -- a lot of latin. he said earlier this month an argument that the courts over the opinions. he reviews judgments and results. there are a lot of other factors that clearly don't apply here. the other one that could arguably be in place when the state court for court of appeals has decided on federal law that has not been but should be settled by the square. the petitions raise questions back in the rights of millions of americans in contrast with the questioning king is a narrow straightforward statutory interpretation. the marriage case involves dozens of state laws being satisfied on federal grounds, question would want the supreme court to weigh in and assess whether that is a valid determination of federal law. in contrast there is no judgment from a court of appeals setting aside of federal regulation at issue in these cases. whatever you think about the marriage cases, i suppose there's lots of agreement -- to surmount this room it makes far less sense to use king. i should say waiting would give

statutory interpretation around a proper framework, under the framework advanced by justice scalia, it's not a lone hero, it's the justice characters. they're not enemies to be dispatched with by an initial narrow isolated reading, they're meant to come together to a complete understanding and interpretation of the statute. you see this isolation in all sorts of the challengers briefs. you see it in the plaintiff's briefs. you see it in the opinion, just the structure of these opinions it starts with a strong default and each individual challenge one by one is dispatched by saying, well, it wouldn't be absurd to adopt our reading. it wouldn't be ridiculous. we can twist it in some way that makes it work. so under this more contextual based argument, that's the best. argument for the government that method of statutory interpretation for two reasons. one, i think the government wins under that argument. i'll explain why in a second. two, i think it's the best argument if your goal is not preach to converted. i think there are going to be proposed judges, liberals who want to see everyone

we have to change that entire process to have special prosecutor appointed and justice scalia spoke to that and the supreme court decision what we saw happen with justice scalia and supreme court said the function of the grand jury was. >> o'donnell: mr. crump it was extraordinary to see the grand jury in action and what happened afterwards. release of thousands of pages of documents and evidence from that grand jury, if you look at the front pages of the "new york times" today and the "washington post" today, they did analysis of all those thousands of pages of documents and they put together questions about whether michael brown was charging the officer or whether he was giving up and surrendering. have you seen these documents. what does the family think happened on august 9 this? >> they think the child was running from the police and they thought that he was giving up. when they look at released documents, shows you just how partial this prosecutor's office was. look at the way they question the people who came out and said that michael brown -- it was the police officers fault co

and as justice scalia says, that's the way to promote accountability. they didn't want unelected agencies -- the fox to guard the hen house. >> that may be. but i doubt if congress had thought about the situation that i posited, they would be content with the possibility of a disclosure that wasn't really a disclosure to the full public. >> well, i think, justice alito, congress has dealt with this question about how to whistleblow, do you need an exhaustion requirement, and so on, and other things. and every single time -- they've amended the act four times. and every single time, they've said the problem is not too many whistleblowers, it's too few. congress recognizes it's really hard for someone like mr. maclean, other whistleblowers, to go to the media because they put their job at risk, they get fired. and then they have to spend years litigating, as this litigant has, just to get his job back. and they do that only in the name of public interest. there's no private gain or anything like that. so, justice kennedy, of course congress can prohibit t

in 2012 when the supreme court up held the sca, justice scalia seemed to fly in the face. d operate an exchange in that state. to boot, on the november 7th blog post from yal law professor abbi sp cites justice scalia's dedication to textualism. noting that textualists say it's to be sophisticated. the outcome of this obamacare challenge may come down to justice scalia, arguably the most conservative of the supreme course justices and whether he takes his own words literally. joining me now is jenea wilson for the the naacp legal defense and education fund. and from washington, amy howe. editor and reporter. amy, i want to start with you. what do you make of the fundament mal argument that scalia, if he's true to textualism as a theory, as opposed to opposition to the affordable care act, would have to side with the aca in this case? >> well, he certainly used those words. he also said elsewhere that when the language is clear courts shouldn't rewrite it. so i think really the challenge will be to convince justice scalia the language isn't clear so he then goes on and moves

justice scalia again said, and he talked a lot is what happened. he said earlier this month in an oral argument that the court does not review opinions. it reviews judgments and interviews results. most of the rules and 10 don't apply here. the other one i could argue lately in place when the state quarter united states court of appeal reports federal law that has not been but should be settled by the square. i think it would be astonishing for the court to decide the question in came raises its recent decision that the same-sex marriage positioned him. why is that? or when the marriage petition raise fundamental constitutional questions affecting the rights of millions americans. in contrast legal questioning and king is a narrow and straightforward question of statutory interpretation. the marriage cases involve dozens of state laws the constitutional provision set aside on federal ground. whether you want the supreme court to weigh in and whether that's a valid determination of that row. in contrast there is no judgment from a court of appeals s

>> yes, justice scalia. >> congress can do that. >> that is correct. congress can do that. and the test, if there is a conflict -- >> and you say can do the same here. and the fact that the state department doesn't like the fact that it makes the palestinians angry is irrelevant. >> absolutely, justice scalia. that is correct and >> if you take that position, which explains it, then what do you think of justice story who writes in 1833 that, "the exercise of the prerogative of acknowledging new nations and ministers" and he makes clear that involves whether a city or a region is part of a country, et cetera, he says, it's an executive function. some argue, as we -- i think we've just heard, that congress could make that decision, too, but that hasn't been decided. and he concludes that, "a power so extensive in its reach over our foreign relations could not properly be conferred on any other than the executive department will admit of little doubt." >> justice -- >> so he is saying, of course, you have to have one person deciding such a thing, and that has to be the executi

the actual while blower act which justice scalia exempts voted on 102-d-3. argumentdidn't buy the the government has come up with reportys that the senate means 102-d-3 was a specific rohibition because they added language no provision of this chapter shall be construed to the authorities and responsibilities set forth in section 102. congress itself didn't 102-d-3 this notion that was specific. >> you might be right about that. what bores me is drive -- bothers me is driving an the pretive wedge between foia exemption and whistle act.r >> i think that this doesn't meet -- think your opinion is the wiser way to go about t. assuming that this statute is specific enough, which is the better way to go about it? blower act isstle special or to say interpret them alike? >> i think that either is equally plausible because foia whistle blower protection act are two different acts. foyas is about empowering agencies and here nobody has said that. the act never refers to empowering appearings. congress with respect to the whistle blower act is concerned about incenti

even justice scalia who is the strongest opponent of developing a judicial rule against gerrymandering does not defend the practice on the merits. >> host: so this is a practice that all justices say can be unconstitutional, that people like bill gates and others from all sides of the spectrum say is the main political problem facing the country today, and yet the court says there's no judicial solution. >> guest: in its latest cases, that's right. >> host: yeah. you do give examples, and you tell the great story of how when you insisted on including this illustration in a judicial opinion, chief justice bear ger was -- bear ger was concerned it would too expensive, but he agreed to do it because you had one less law clerk than everyone else, you were saving money. [laughter] >> guest: that's exactly right. >> host: what struck your notice? >> guest: well, if you look at it closely, you can see some of these districts just don't make any sense at all. district five, for example. and, in fact, several of the districts are just without any rational justification in terms -- if you just l

thank you, justice scalia thank you jim goldman and david pride and the society for the invitation. a special thanks to jennifer lobe for making all of this possible. t's an honor to be here. on october 12, 1864, 150 years ago this week, chief justice roger brook taney died in his . nted home in washington d.c. after 28 years as chief justice of the nation's highest court, the death of the 87--year-old maryland native prompted little grief or mourning on the part of the people of the nornle states. while some northern democratic papers offered words of respect, taney's republican opponents who were much more numerous were quick to portray his death as a cause for celebration. as soon as word came to massachusetts senator charles sumner, he dashed off a letter to president abraham lincoln in which he noted, "providence has given us a victory in the death of chief justice taney. it is a victory for liberty and constitution." in the dates following, a philadelphia newspaper stated the nation can feel little office s his removal of has been -- later, the atlantic monthly concluded that

. >> the supreme court justice scalia did come to speak while i was in school. they made quack, quack noises and he stood up and he gutted them. >> you are like what about this? he would make a bunch of legal commentaries and they had no idea what they were talking about. >> i thought you mean he literally gutted them. >> another man's man, rick perry. and scalia. >> i wasn't able to find out how perry responded to these questions. i couldn't find anything on any sites. can you make up how it went down and we will assume that's how it went down. or you can ignore that and say what you want. >> i would have loved to have seen a chris christie response like sit down, shut up or something like that. stupid kid. what i think is so funny is that patrick is the kid who made the flier, they are funny, right? i think they are funny. i think a lot of people think they are funny, but because they had control nobody in the audience laughed. they booed. that's the point. you need to know your audience. obviously they weren't going to think it was funny. why were you even sa

my worry and about doing it is that justice scalia was pointing out to my friend. i think the congress is saying unlike foia, the rules and regulations do not do the prohibiting and it's only one. that's why the phrase is prohibited by law. it wasn't anything like that in foia and indeed foia has two purposes. robinson said one is to empower the agencies with nine different exemptions and follow that of the agencies. >> that is your position is that after the congress enacted statutes, anything that came within the definition could be disclosed until congress passed another statute. that's what you wanted? >> i think as long as neither has been notwithstanding clause they see them before the whistleblower protection did act or it has a specific prohibition about the specific matters to be disclosed on mike the general prohibition here the detrimental transportation that's enough but there's also a more fundamental. >> where can i look to find examples before the regulation there with the information pertaining to airline flights that could not be disclosed. >> i am

i sat next to justice scalia at the correspondent's dinner. >> he knows because. >> i ran into justice knew who you were before that day they don't watch cable news and if you don't watch fox news you wouldn't know about gruber right now because there had been a blackout. >> go wide with it on sunday. >> i don't think the supreme court justices cared about gruber. the law is in trouble with that goes up. >> i think they care about fraud. do i think they care about fraud. >> this isn't outright fraud. low equal fraud. he spun everybody. >> it wasxsgz% sold under false pretenses -- >> -- that's a political issue. that should-that the electorate should respond to. they should have their say on it. >> inside consultant guy making $6 million. can you imagine this? >> by the way, it wasn't all the obama administration. >> some of it was paid by the states. >> he got off that. >> amazingly from 2000 to 2005 he reaped millions from the doj. how? he has been health consultant for all these years. >> because the doj is -- enforcement on it. so, look, this guy is running everything but when he sa

you clerked for justice scalia. so what got you to the place you are now?this is not a democratic issue or a republican issue. this is an american issue. every american has got to recognize the way the system has corrupted our democracy and makes it impossible for republicans and democrats alike to get what they want out of their government. look, if you're a republican and you want to simplify the tax code, there is no way to simplify the tax code as long as this is the way we fund campaigns. if you're a democrat and you want climate change legislation or real health care reform, there is no way to get those reforms until you change the way you fund elections. so we're pushing the idea that we've got to get beyond the left/right, democrat/republican gigs a division and recognize there's a fundamental problem and it will not be changed until we change the which we fund elections. >> this election we will find $4 billion. as i think i saw the last british general election the entire election cost something like $100 million. i may be wrong but some tiny frac

even justice scalia who was the strongest proponent of developing a judicial rule against gerrymanderingdoes not defend the practice on the merits of. >> host: this is a practice that all justices they can be unconstitutional, that people like bill gates and other small sites of the spectrum says it's the main political problem facing the country today and yet the court says there's no judicial solution. you to give examples of gerrymanders in the book with beautiful color illustration a to agree to that when you insist on including this illustration in a judicial opinion, chief justice burger was concerned it was too expensive, it would cost $3000 that he agreed to did because you have one less law clerk and everyone else. you were saving the court money. what is it about this district that looks so funny and that struck your notice? >> guest: if you look at it closely you can see some of these districts just don't make any sense at all. district five, for example, goes all around. in fact, some of the districts are just without any rational justification. if you do look at the shape. i

there is still, of course, one court that has not weighed in on this recently, and we know that justices scaliack the decision allowing gay marriage in south carolina. it is increasingly looking like circuit court decisions that the supreme court may take the issue up, does that make you -- is there -- does that approach leave you with prepdatitrepidat? >> it does. you're nervous whenever you go up against the supreme court. it's historic landmark decisions on sodomy and stapame-sex marri, and you have the supreme court refusing to enact stays to block same-sex marriage coming to states like south carolina, montana, kansas, it's hard to imagine that same supreme court would allow same-sex marriage to become legal to come to south carolina when they were laying in wait to undo it. i just don't think that's going to happen, and a decision from the supreme couwon't undo marrit is legal, it will allow states to re-legalize it potentially. people want this issue to be over and done with, and what we're seeing is once you have same-sex marriage in a state it becomes much less controversial. once peop

at times need to take the cameras and the attention off of washington, which is an idea that justice scaliake a listen. >> i was for it when i first joined the court. and switched and remained on that side of it. i'm against it because i do not believe, as the proponents of television in the court assert, that the purpose of televising our hearings would be to educate the american people. but what most of the american people would see would be 30-second, 15-second takeouts from our arguments and those take-outs would be not characteristic of what we do. they would be uncharacteristic. >> that's his argument for the policy that reigns today, no cameras in the supreme court. you argue that approach is needed in other parts of washington, why? >> ari, our country is deeply divided, polarized and our congress certainly is the same. we're not going to have a centuryist kind of kum-bi-ya revolution. the goal is to go back to a time when we could be partisan and productive. when you think about why the country was able to do that, it's because members of congress and the president knew each other.

more than one justice over the last few years including famously justice scalia said the declaration of independence is not part of our law. >> i know. >> justice kagan in her nomination hearing was actually, her confirmation hearing was asked a question about the declaration of independence and she said basically to the extent there are rights out there, i wouldn't want you to think that i should enforce those rights. so how would you respond to that and, do you have any broader thoughts about the declaration and this reference in the constitution? >> well you know, it is clear that the declaration was not part of the original constitution. there is a kind of interesting debate about that. one of the things that mcclellan says is that, well, you know, they didn't put that in the constitution because by the time they got around to drafting the constitution, they were so over all that natural rights stuff, right? i mean, that was done, that was you know that was kind of exuberant thing that they did. but when they got around to the constitution they were very sober and did not bring th

more than one justice over the last few years, including justice scalia, said the declaration of independence is not part of our law. >> i know. >> and justice kagan in her nomination hearing was actually asked a question about the declaration of independence and she said to the extent that there are rights out there, i wouldn't want you to think that i should enforce those rights. so how would you respond to that? and do you have any broader thoughts about the declaration and its reference to the constitution? >> well, you know, it's clear that the declaration was not part. of the original constitution. there's a a kind of interesting debate about that. one of the things that mcclelland says is, well, they didn't put that in the constitution because by the time they got around to draft iing t constitution, they were so over all that natural rights stuff. i mean, that was done -- that was the kind of sbub rant thing they did. but when they got around the constitution, they were very sober and they did not bring that up again. my own feeling is that the reason that they did not say anything wh

if i could say one last thing, to justice scalia about the colloquy we were having before. with all due respect, i think there's nothing unusual about a party litigating a case up through the courts. may it rise in state or federal court. they can choose the arguments they choose to raise. when we got a judgment in our favor from the north carolina court of appeals, it was up to the state at that point to choose which arguments they wanted to pursue further in this case. just like a state, a party may ride the first amendment or second, we think that's all that's happened here. >> thank you, counsel. the case is submitted. >>> veterans for your service. retweet to thank a vet. house speaker boehner sends this out. please pause today and pay tribute to our veterans. ohio republican sends out this. today and every day we salute the brave men and women who served in the u.s. military. thank you for your service. later we will be hearing from arizona senator and navy veteran john mccain as he recounts the lives of soldiers who served in conflict. he will talk about his new book

no reason was given, those justice scalia and thomas indicated they would have kept the stay in place. kansas becomes the 33rd state to allow same sex nuptials. >> >> russia under fire at the united nations accused of fueling the war in ukraine. the u.n. security council holding an emergency session wednesday, moscow denying claims that russian military equipment and troops having into ukraine for the last 48 hours. the solution is difficult when ceasefires are ignored. >> three times, if i'm right, mr. putin promised to withdraw troops, but they are still there. it is true we have lost confidence, because they do not respect the agreements we reached. they don't keep their words. >> the security council that met 26 times over ukraine but little action has been taken. russia is a permanent member and has veto power. >> is this the beginning of russias annexation of eastern ukraine? >> i think if you look at what happened in cry my he i can't, you see the same fingerprints here. what we're seeing now are open tanks in the streets of ukraine whereas before there were individual armored

nd justice scalia, you asked about criminal penalties, but the statute itself does not provide criminal penalties just as mr. katyal said, but it does provide civil penalties. we think in that situation where you have the prior case law, the legislative history, the practical effects and the plain text that to say that a statute hat mandates nondisclosure regulations does not specifically prohibit disclosure is just a very odd construction. the principal practical arguments we've heard today are that we don't have to worry because congress could have had an executive order to make it work. we continue to think there is no ispute that the ssi system doesn't work under mr. katyal's construction. the idea that what congress expected was a duplicative executive order to mimic the ssi scheme seems very odd to us, and seems like a very odd way to construe congressional statutes. there was a concern here that there's this fox guarding the hen house. that may be a concern with the whistleblower protection act, but it has no application here, where congress itself mandated the nondisclosure regu

for the record justices scalia and thomas said they would have granted the stay. ngton. i'm here to cover the president's major announcement on immigration to come tonight at 8:00 p.m. eastern time 5:00 p.m. pacific. it is expected to protect up to 5 million undocumented immigrants from deportation, including the parents of u.s. born citizens or residents. what about all those parents who have already been deported? joining me mario marquez, born and raised in the united states. his parents deported to mexico when he was a freshman in high school after living in the united states 15 years. pleasure to see you. >> thank you for having me. >> what's your message to the president when you hear that if your parents were still in the country today, they would probably be able to stay after his executive orders? >> my message to the president is that there's a lot of families that are split up and are still in risk of getting split up and it is really hard especially for me as a student perspective, being away from your parents, only see them a couple times a year. yes,

. >> absolutely, justice scalia. >> take that position, which explains it, then what do you think of justice story who writes in 1833 that the exercise of the prerogative of acknowledging new nations and ministers and he makes clear that that involves whether a city or region is part of a country, et cetera, he says it's an executive function, some argue, as we -- i think we have just heard, that congress could make that decision, too, but that has only been decided and concludes that a power so extensive in its reach over foreign relations could not properly be conferred on any other than the executive department will admit of little doubt. so he is saying, of course you have to of one person deciding such a thing and that has to be the executive. that's 1833. pretty knowledgeable about the founders' intent. >> but that is a rather extreme position, number one, to suggest that the executive branch would have not only the authority to recognize a foreign government, but also at the state department's say so, that automatically would end their question or any review by any other branch

. >> absolutely, justice scalia. that is correct. >> if you take that position which explains it, then what do you think of justice story who writes in 1833 that the exercise of the prerogative of acknowledging new nations and ministers, and he makes clear that involves whether a city or a region is part of a country, et cetera, he says it is an executive function. some argue, as we, i think we've just heard, that congress could make that decision too. but that hasn't been decided and he concludes that a power so extensive in its reach over, our foreign relations could not properly be conferred on any other than the executive department will admit of little doubt? so he is saying, of course you have to have one person deciding such a thing and that has to be the executive. that is 1833, pretty knowledgeable about the founders intent. >> but that is a rather extreme position, number one, to suggest that the executive branch would have not only the authority to recognize a foreign government but also at the state depart

>> absolutely, justice scalia. >> if you take that position, which explains it, then what do u think of a justice who writes in 1833, the exercise of the prerogative of acknowledging new nations and ministers -- and he makes clear that that involves whether a city or region is part of a country, etc. -- he says it's an executive function. some argue, as we -- i think we just heard -- that congress could make that decision, too, but that hasn't been decided. and he concludes that a power so extensive in its reach of foreign relations could not probably be conferred other than the executive department will admit of little doubt. he's saying, of course you have to have one person deciding such a thing and that has to be the executive. that's 1833. pretty knowledgeable about the founders' intent. >> that is a rather extreme position, number one, to suggest that executive branch would have not only the authority to recognize a foreign government but also if the state department says so, that automatically would end the question or any review by any other branch and the state department mer

liberal justices, i happen ton that at one time or another, they have been sick, so shouldn't they have to recuse themselves? >> you think they're the only ones who have been sick? >> stephen: scalia been sick a day in his life. no, you eat that much prosciutto, nothing can live inside of you. ( cheers and applause ). what happens? so if they rule against the obamacare thing, if the itself exchanges aren't able to give any money, is there anything they can do after that? can the supporters of obamacare appeal to the justice league or the the legion of doom our the at vengers or anything like that. >> they could appeal to congress. congress could fix this very easily. but do you think congress is really going to do that? >> stephen: no. emily, thank you so much for joining me. emily bazelon, the "new york times" magazine. we'll be right back. thai. ♪ [rock and roll music] ♪ high pitched excited squeal yes! yes! kids never get this excited about clean teeth. but dogs do. give the gift that makes dogs giddy. and fights plaque and tartar. greenies dental chews. who convinced you to follow your dreams with one cross country roadtrip?d you give someone the greatest gift for someone who

liberal justices, i happen ton that at one time or another, they have been sick, so shouldn't they have to recuse themselves? >> you think they're the only ones who have been sick? >> stephen: scalia been sick a day in his life. no, you eat that much prosciutto, nothing can live inside of you. ( cheers and applause ). what happens? so if they rule against the obamacare thing, if the itself exchanges aren't able to give any money, is there anything they can do after that? can the supporters of obamacare appeal to the justice league or the the legion of doom our the at vengers or anything like that. >> they could appeal to congress. congress could fix this very easily. but do you think congress is really going to do that? >> stephen: no. emily, thank you so much for joining me. emily bazelon, the "new york times" magazine. we'll be right back. thai. carmela, you're a pizza expert, you ready for pizza hut's new flavor of now menu? ok. get a pair of pizzas, classic or new, for six ninety-nine each. the flavor of now menu. get it at pizza hut dot com. ias the people of this , little belgian town waited for the crowning moment ♪ nature had other plans but... with the help of the masters

liberal justices, i happen ton that at one time or another, they have been sick, so shouldn't they have to recuse themselves? >> you think they're the only ones who have been sick? >> stephen: scalia been sick a day in his life. no, you eat that much prosciutto, nothing can live inside of you. ( cheers and applause ). what happens? so if they rule against the obamacare thing, if the itself exchanges aren't able to give any money, is there anything they can do after that? can the supporters of obamacare appeal to the justice league or the the legion of doom our the at vengers or anything like that. >> they could appeal to congress. congress could fix this very easily. but do you think congress is really going to do that? >> stephen: no. emily, thank you so much for joining me. emily bazelon, the "new york times" magazine. we'll be right back. thai. we all know someone this year.. . ...who has done something special. give them the gift for those who fly beyond. all-in burger™. with smoky bacon ranch sauce, bacon searedn inside fresh ground beef, and more bacon on the outside. new all-in burgers™ with free refills of fries, and a surprisingly low bill. only... at applebee's. guinness