justice kagan: but, mr. frederick, it's also it's also no different from a user's perspective, it's exactly the same as if i'm watching cable. right? you just have a different content selection, but it looks the same to you. somebody else is providing you with a menu, and then you pick off that menu. >> right. but the menu, justice kagan and justice ginsburg, it is simply what is technologically available. there are broadcast signals that are available in a local area, and they are limited because that's what the broadcasters make available. and simply providing a user guide that says you can tune to this channel or you can tune to that channel, if you want to pick up one program or another, can't be the difference between a content provider and merely -- merely facilitating the use of your equipment. justice breyer: would you would you explain in a sentence or two, which will sound as if i'm bickering with you, but i want them to have a chance to reply, the thing that frightened me somewhat in your brief wa

>> well, first, justice kagan, let me take a little bit of an issue with your premise and let me try to responsive to your question anyways after i do that. how i'd like to take issue with your premise is that when congress first passed the statute rfra, it talked about free exercise as defined in the court's cases. and then at the time that it passed rluipa, which is a later statute, it actually confronted some lower court cases that had limited rfra and tried to impose a centrality requirement. and congress didn't want that. it didn't want to take all the baggage of the pre-smith free exercise cases. so it actually amended the statute to broaden it so it now protects any exercise of religion. so i would take issue with your premise that rfra simply picks up everything that ever happened pre-smith. >> well, there there's another respect in which this, even as originally enacted, does not track the preemployment division v. smith law. that is to say, the compelling state interest test in the prior cases was never accompanied by a least restrictive alternative requirement. that was an

>> that's correct, your honor. >> so your answer to justice kagan is that there is no violation if they move just the bush protesters. that's your answer. >> that's correct, your honor. but i and if i could just say a word or two about the >> i don't know i thought what the chief was going to say, there's no differential reason to move one or the other. let's assume you have an equal amount of time, you can get everybody moved, and you just are choosing to move the bush anti-bush demonstrators. >> your honor, i understand that this is an unattractive hypothetical for the government's position. and if i could explain why nonetheless i think it's the right answer because the flip side is if you have an agent who has a legitimate security rationale and is going to move against somebody who's hostile who's showing a message that's hostile to the president, you don't want that agent to hesitate. that's what this court said in hunter. the court said in hunter there are times when we don't want a reasonable official to hesitate before he acts and nowhere is that more important than when the sp

. >> i just want to be clear what your answer to justice kagan was, her hypothetical. is -- is part of your answer that this might -- the hypothetical that she gives -- contravene earmarking? or -- >> that's part -- it can pose both earmarking concerns and proliferation concerns if we're talking about something. and if we're talking about a pac that's -- >> so is part of your answer to her there that the hypothetical isn't real or isn't going to happen or -- >> yes, i think -- >> or can't happen under the existing law? is that your answer? >> that's part of the answer. don't think it's a particularly realistic scenario under existing regulations. >> would the other side concede that this is true? >> i -- i doubt they would concede that it's true. but, you know, i think that if you look at it, if you have a bunch of pacs that are getting contributions from this same group of individuals, you are going to run into earmarking and proliferation restrictions. but the other thing i would say -- >> i can't imagine that if you have a pac which says we're going to give money to

crime. >> it's the flipside of the same coin, the technology that makes it so troubling for justice kagan and what law enforcement says it's an exogent circumstance. law enforcement says "we recognise four constitutional right to be free, but we have an exception, if we think you'll eliminate, get rid of, erase or toth down -- toss down the toilet what we are looking for we get to come after you. that exogent circumstance is always there. we should take app initial look, a pass at the cell phone. not everything, but a glimpse of a few things. maybe we'll look at a few acts. >> could it be a middle ground. where they seize the phone, hold it until the judge safference and and we'll do it. is this why we protect against. >> there's something called the farro day phone. you can pop the phone into a bag. it prevent someone wiping off the data. that is one possibility. that will be enough to satisfy law enforce: you tack about justice brier not knowing how to use the phone. the justices - they are a little older. they are helping them to figure out the technology. this is an issue of how to un

. >> justice kagan talking about pull-up medical records and accounts. >> justice brier saying he can't open his cell phone, he does not have the password. >> justice kennedy raised the fact that criminals and the language they have embraced enabling them to be more dangerous. maybe the police should have access to the cell phones because it could stop crime. >> it's the flipside of the same coin, the technology that makes it so troubling for justice kagan and what law enforcement says it's an exogent circumstance. law enforcement says "we recognise four constitutional right to be free, but we have an exception, if we think you'll eliminate, get rid of, erase or toth down -- toss down the toilet what we are looking for we get to come after you. that exogent circumstance is always there. we should take app initial look, a pass at the cell phone. not everything, but a glimpse of a few things. maybe we'll look at a few acts. >> could it be a middle ground. where they seize the phone, hold it until the judge safference and and we'll do it. is this why we protect against. >> there's somethin

but the menu, justice kagan and justice ginsburg, it is simply what is technologically available. there are broadcast signals that are available in a local area, and they are limited because that's what the broadcasters make available. and simply providing a user guide that says you can tune to this channel or you can tune to that channel, if you want to pick up one program or another, can't be the difference between a content provider and merely -- merely facilitating the use of your equipment. >> would you would you explain in a sentence or two, which will sound as if i'm bickering with you, but i want them to have a chance to reply, the thing that frightened me somewhat in your brief was, i think, of the cloud storing everybody's music. vast amounts of music. and now they then send it down, perhaps to a million people at a time, who all want to hear the same song. now, what you said was, if i understood it, but explain it if it is, that there is a provision of the copyright law that says when that happens, it's subject to a compulsory license. and if it's subject to a compulsor

justice kagan did not vote. an important case because it asked an important question and the court came up with an equal uncomplicated issue. the question was whether it was okay for federal courts to strike down a state referendum approved by state voters to stop this in the admissions process for state universities. the ruling says no, there's nothing in the constitution, or in past supreme court cases, that allow the courts to override the will of the voters in the state of michigan, wolf. >> what's the reaction been so far from the minority, the minority justices on this major decision? >> absolutely. as you might imagine, there was a powerful dissent read from the bench from justice sonya so the that mayor saying the court allows voters in michigan to do what the supreme court forbids what she essentially mentioned, an end run, if you will, around equal protection for minorities. her dissent from the bench and written decision was, frankly, so long and pointed that the chief justice actually took issue with

in that situation and i think this the point justice kagan was making, it would it would ordinarily be the right thing to do to sell, the truth will out eventually. and there may be there may be a precipitous drop. but the stock has already been at a level and stock has already been purchased at an inflated level, which means that the employees are not getting what they were entitled to. >> but you say they should sell based on the inside information? >> no, he can't sell on the basis of inside information. he could -- i'm sorry, he could stop purchasing, which is -- >> but the market will see through that in about two seconds. but the -- >> well, no, this the -- >> that isn't really my question. it's a numerical question. what -- you know, i was making up numbers wildly. what are the actual numbers? that is, approximately how much in assets is accounted for by ownership of the company's you know, this kind of a plan where you buy the company's stock. do you know? >> i don't know the amount of assets, but -- >> about? >> as i recall, i think there are perhaps 12,000 or 14,000 esop plan

. >> i just want to be clear what your answer to justice kagan was, her hypothetical. is -- is part of your answer that this might -- the hypothetical that she gives -- contravene earmarking? or -- >> that's part -- it can pose both earmarking concerns and proliferation concerns if we're talking about something. and if we're talking about a pac that's -- >> so is part of your answer to her there that the hypothetical isn't real or isn't going to happen or -- >> yes, i think -- >> or can't happen under the existing law? is that your answer? >> that's part of the answer. don't think it's a particularly realistic scenario under existing regulations. >> would the other side concede that this is true? >> i -- i doubt they would concede that it's true. but, you know, i think that if you look at it, if you have a bunch of pacs that are getting contributions from this same group of individuals, you are going to run into earmarking and proliferation restrictions. but the other thing i would say -- >> i can't imagine that if you have a pac which says we're going to give money to

. >> i just want to be clear what you're answer to justice kagan was her hypothetical.as part of your answer that this might the hypothetical that she gives, contravened earmarking? >> it can pose to earmarking concerns and proliferation concerns if we are talking about something. >> is part of your answer to her hypothetical isn't real or is it going to happen or it can't happen under existing law? >> that's part of the answer. i don't think it's a realistic scenario under existing regulation. >> with the other side can see that this is true? >> i doubt that they would concede that it's true but i think if you look and you have a bunch of pacs that are giving contributions for the same group of individuals you are going to run into earmarking and proliferation restrictions but the other thing i would say. >> imagine if you have a pac which says we are going to give money to smith. that's bad but if you have have a practice as we are going to give all the money contribute to us to smith and jones that's okay or smith jones and three others. it seems to me that is earmar

ele ele elena kagan sat this one out. >> the big argument on the way we watch television, this involvestle antennas and the invention that could circumvent the way we see tv shows. >> reporter: those arguments are going on right now. it's a software program called aerio and it allows a user to watch over the air broadcast television on a mobile device. what it does is no different than a homeowner taking an antenna from the roof and connecting into a digital video recorder, we're moving all of that to a central facility and it's legal. the broadcasters say it violates copyright laws and they are taking their over the air programs and for a fee making them available without paying copyright fees. the broadcasters say when those programs are put on cable tv or satellite, those providers do pay a copright fee and they are stealing their signal. >> nbc universal is part of that case. >> reporter: indeed so. >> thank you, pete williams, we'll look for all of this throughout the day. in kiev, vice president joe biden had harsh words for russia while urging ukraine's new government to root out

but the menu, justice kagan and justice ginsburg, it is simply what is technologically available. there are broadcast signals that are available in a local area, and they are limited because that's what the broadcasters make available. and simply providing a user guide that says you can tune to this channel or you can tune to that channel, if you want to pick up one program or another, can't be the difference between a content provider and merely -- merely facilitating the use of your equipment. >> would you would you explain in a sentence or two, which will sound as if i'm bickering with you, but i want them to have a chance to reply, the thing that frightened me somewhat in your brief was, i think, of the cloud storing everybody's music. vast amounts of music. and now they then send it down, perhaps to a million people at a time, who all want to hear the same song. now, what you said was, if i understood it, but explain it if it is, that there is a provision of the copyright law that says when that happens, it's subject to a compulsory license. and if it's subject to a compulsor

that you can just replace her with the next guy, knowing as we know that sonya sotomayor and elena kagan almost didn't get confirmed, the idea we're going to find another aclu lawyer to replace her i think is pretty fatuous. >> yeah, you think about her work on gender equality and all those cases and all the positions she took, and you think about what it takes to get confirmed today and it really is an open question. dahlia lithwik and e.j. dionne, thank you both for joining us tonight. >> good to be with you. >> thanks. >>> coming up i'll talk with the south carolina police chief who was just fired after 20 years of service. she believes it is because she is a lesbian. you're going to hear a tape that might help her case. that's straight ahead. [ girl ] my mom, she makes underwater fans that are powered by the moon. ♪ she can print amazing things, right from her computer. [ whirring ] [ train whistle blows ] she makes trains that are friends with trees. ♪ my mom works at ge. ♪ [ female announcer ] f provokes lust. ♪ it elicits pride... incites envy... ♪ ...and unleashes wrath. ♪ tempta

justice kagan recused herself. she had been a solicitor general. ask you about o this new technology that must justices in ed the some respects but about the fort was a vision and pbs party to the complaint. >> the broadcasters are suing start-up that retransmits broadcast signals to people for fee through the internet. the question was can they do copyrightut violating law and i love the way you say he willed. > just breyer referred to so-called photo records and former solicitor general you to bring him trying it down to earth for the justices saying let's just think a car dealer versus a valet service. f you are dealing with a car dealer you are getting something new and he said that is what doing.s and they are saying we are just valet. our car with a gwen: we will talk more about that. seems ma administration to be keeping its promise to use change e clout to policy. this time the beneficiary will be nonviolent offenders who have been jailed too long. even as the announcement was made james cole appeared to objections.the >> it is important to

one other note, justice kagan set this out when she was at the supreme court. >> pete williams at the supreme court building tonight. so that was today's decision by the court. this next issue was argued and presented to the court today and full disclosure right at top. this company is a big player in this case along with a lot of other big names in media who are tonight just like us covering it as a news story. this is about something called aereo, it delivers tv to you by bypassing the usual players. our report tonight from nbc's stephanie gosk. >> reporter: ben allen doesn't pay for cable and he has a message for the cable company. good riddance. >> no more cable. the only thing i'm paying for is internet. >> reporter: he uses the online service aereo. along with several other internet video services. slashing his once $110 tv bill in half. aereo launched last year from a warehouse in brooklyn and now available in 11 cities charging customers $8 a month to watch any broadcast tv network live or recorded. to use aereo you don't have to buy any new gadget. subscribers get on line wit

justice kagan had worked on the case before she joined the court. she didn't vote today. here's chief legal correspondent jan crawford. >> reporter: for a generation, the battle over affirmative action has been fought here at the supreme court, but today, the justices said voters, not judges, could decide the ultimate fate of racial preferences. upholding michigan's ban on affirmative action, justice anthony kennedy, writing the main opinion, said the case is not about how the debate about racial preferences should be resolved; it is about who may resolve it. "affirmative action, while permissible, is not required and it is demeaning to the democratic process," kennedy wrote, "to presume that the voters are not capable of deciding whether it should continue." michigan voters approved the affirmative action man ban in 2006 after the supreme court refused to outlaw an admissions program at the university of michigan law school. bill chutey is michigan's attorney general. >> today's decision by the united states supreme court is a victory for the citizens of michigan, who ov

>> that, justice kagan, is precisely why i'm asking you not to decide the cloud computing question once and for all today, because not all cloud computing is created equal. the details of it might matter. if i can take my valet parking service one more time. if a valet parking service starts renting them out and sort of has a little zipcar service on the side and says, hey, while we have your car, if somebody else needs a car, we're going to rent it out to them, i think that's different from the pure valet parking service. if i could reserve the rest of my time for rebuttal. thank you. >> thank you, counsel. mr. stewart. >> mr. chief justice, and may it please the court -- i would like to begin by reinforcing two of the points that mr. clement made. the first is that what aereo is doing is really the functional equivalent of what congress in the 1976 act wanted to define as a public performance. as the chief justice said, one potential way of looking at this is that aereo and companies like it are not providing services, they are simply providing equipment that does, in a more sophistic

with cell phones we're talking about potentially thousands and justice kagan said people carry their entire lives on cell phones. the likely outcome a middle ground with police allowed to search cell phones for evidence of serious crimes but not to hunt through them in minor ones. pete williams, nbc news at the supreme court. >>> and still ahead on our broadcast tonight joining forces, a group of famous men fighting back in the name of young women and against an epidemic on our college campuses. >>> later the big announcement today about the stars returning to a galaxy far, far away. >>> back now with a new effort by the white house enlisting famous men from the entertainment business to combat what's being called an epidemic of sexual assaults against women on our college campuses across this country. our report tonight from nbc's rehemeth ellis. >> reporter: sexual violence on american college campuses is alarming. one in five women have been sexually assaulted at college but only 12% of student victims report the assault. today at the white house madeline smith revealed how painfu

said justice elena kagan, people carry their entire lives on cell phones.the world we live in. more than 90% of american adults have a cell phone, and 58% have smartphones that essentially are like mini computers. the obama administration argues that cell phones are fair game during an arrest. as justice antonin scalia sugests, if you carry it on your person, you ought to know it's subject to seizer a seizur examination. but he adds it seems absurd for police to search a cell phone if they've stopped someone for a traffic violation, a concern shared by justice anthony kennedy. we're living in a new world. someone arrested for a minor crime has their whole existence exposed on this little device. the justices also show they were pretty technologically savvy. they talked about twitter, facebook, whether police officers should put cell phones on airplane mode, all of this in a court that does not allow cameras or any recording device inside, not even cell phones. jan crawford, cbs news, the supreme court. >>> well, straight ahead in "money watch," target takes

said justice elena kagan, "people carry their entire lives on cell phones. that's the world we live in." more than 90% of american adults have a cell phone and 58% have smartphones that essentially are like mini-computers. the obama administration argues that cell phones are fair game during an arrest. as justice antonin scalia put it, "our rule has been if you carry it on your person, you ought to know it is subject to seizure and examination." but scalia indicated there should be some limits saying, "it seems absurd for police to search a cell phone if they've stopped someone for a minor traffic violation." a concern echoed by justice anthony kennedy. "we're living in a new world. someone arrested for a minor crime has their whole existence exposed on this little device." now the justices also showed they were pretty savvy about technol. they were talking about twitter and facebook, and whether police officers could put a cell phone on airplane mode, all of this, scott, in a court that does not allow cam radz or any recording device inside, not even cell p

justice kagan is on my left. justice sotomayor or on my right. children in school, and watch what is going on in the and they see the women are not there just to look good. my colleagues are likely participants. anyone who has been to the court knows that. journalistsveral counted the number of questions each justice asked, and they decided justice sotomayor or won the prize even more than justice scalia. the women are not shrinking violets. lonely being the only woman. for sandras better who was a more imposing presence. >> i don't think there is anyone questioning how imposing you are. you can take both questions. >> if i am asked if it's a coincidence, this is for social logical research. i think you are right that women are more on the liberal side. not only when we are talking rights,nder and women's true that mosts of the women justices are on the liberal side. you have to be very careful labeling judges. there is something in it. there was a time when we were five women in the court. we sat sometimes in groups of three. we had a panel of t

liberals ginsberg, breyer, sotomayor and kagan were in the minority. chief legal correspondent jan crawford has more about the ruling and its impact. >> reporter: alabama businessman shaun mccutcheon wasn't looking to contribute millions of dollars to one candidate. he wanted to contribute a few thousands dollars to a lot of different candidates. >> it's a fundamental freedom of speech, constitutional first amendment issue about your right to support as many candidates, parties, and, you know, committees as you choose. >> reporter: today, the supreme court gave donors like mccutcheon the green light to spread the wealth, striking down limits on the total number of candidates and political parties a person can support. federal law had prevented donors from contributing the maximum $5,200 to more than nine different candidates during an election. chief justice john roberts writing the main opinion said there was no evidence that contributing the maximum amount to additional candidates or political parties would lead to corruption. "money in politics may

>> if i can answer in two steps, justice kagan. first in the negative -- what the applicant or patentee must do must not do is simply describe the desired result. that would take us back to state street. that would simply say, i claim a magic box that buys high and sells low or vice versa, i suppose, i claim a magic box for investing. that's what these patents do. then to put it in the affirmative and in the language of mayo, the claim has to recite something significantly more, something significantly more than the abstract idea itself. that would be a contextual analysis based on the claims and specifications and file history, and we know that some devices, some methods, some programming will pass that. it is not going to be a bright-line rule and that's one of the tug-of-war issues that this court and the federal circuit have been having in these cases. the federal circuit wants bright-line rules -- all computers are in or all computers are out. this court has been more contextual. this court has been more nuanced. this court ha

and i find concerning is that we're hearing from the justices, even justices sotomayor and justice kagan at the confirmation hearing supported cameras in the courtroom are starting to say these things. this is the trend. we see nominees start out in support. they get on the court and start to change their mind, which suggests we can't really just weight out this issue. it's not just an age issue. this is a concern about the public. we keep hearing this concern that the public won't understand what they're seeing. they won't understand oral argument is just part of the process. they won't understand that the justices have to be harsh on both sides. they might think someone is getting ganged up on. i type this to be a very concerning issue because it suggests that more information is actually going to be bad for the public. that the public needs to be shielded from information. and it does seem to have an elitism to it, that already those of us who do read the transcripts and listen to the audio or read the reports from the supreme court press corps, that we're the types that can understan

justice elena kagan did not take art. she was the solicitor general for the administration so she was not able to get involved in this case. >> was this a surprise the justices ruled this way? >> it was not a surprise. chief justice roberts leaning to decision.nd in the last term they overturned part of the voting rights act that was designed to protect minorities at the pole. another decision that ordered tougherjust -- screening. this is really in line with what we have seen from the course so far. megan hughes, thank you. since 9-11, the u.s. government has provided a backstop in the event of another terrorist attack. time for the backstop to end? the ceo of marsh mclennan says no. we will tell you why when we continue in just a moment. ♪ >> now the latest on the crisis in ukraine. vice president biden warned russia " time to stop talking and start acting to reduce tension in ukraine." the vice president showed support for the besieged nation, $50 billion in aid for political and economical change. he called on moscow

justice roberts, kennedy breyer, scalia, ginsberg and kagan, so a majority again, asking these kind ofions. kagan, for example, hey, looking at menu on aereo and the controls, quote, it is exactly the same thing as watching cable. chief justice roberts saying that there is no reason for you to have thousands of small antennas, which is how this operate, rather than having one big antenna, there is no reason for aereo to have 10,000 antennas other than to get around the copyright laws. but the attorney for aereo, david fredericks said, listen if an individual can put a antenna on their home, digital antenna and run the line down to their tv and record shows, and not pay any kind of license fee to anybody, because it is an individual broadcast, why should aereo customers have to pay? so the justices now having to wrestle with this difficult question of, what, comes under copyright law, and, the impact that a decision could have on future technologies like aereo for television viewers. the court expected to rule on this case by this summer. jenna, back to you. jenna: at home, doesn't it,

i am frederick kagan, the director of the american enterprise institute critical threats project. we have been working on al qaeda and especially on the various al qaeda-affiliated movements around the world for a number of years now. topicnfortunately is a that does not show any sign of diminishing in importance, and it is getting ever more complicated to understand, because what we are finding is a lot of these affiliates and inociates are ramifying their local areas, and both expanding and interacting with one another in new ways. simply major undertakig ng simply to try to follow what is going on, let alone coming up with come up with a coherent recommendations for one instead. just to take that off the table, that is one thing you are not going to get today, is here is the strategy for defeating al qaeda. that is something that we are working on and a lot of people are working on it, but it will take quite a lot of effort. onare here today to focus trying to understand what we are talking about when we say defeating al qaeda, fighting al qaeda, what al qaeda is, what it is no

justice elena kagan noted, if a suspects phone was nearby, the police could take that phone and look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person's bank records, medical data, could look at that person's calendar, could look at that person's gps and find out every place that person has been recently. >> it is reasonable to take a couple of pieces of paper or an item from somebody's pocket we think it crosses a line to use a smart phone to go into a person's portal to look at a person's affairs. >> the categorical authority of officers to conduct a full search of any item found on an arrestee makes em he nen practical sense in light of the realities of police work. >>> there was also some confusion about how to craft a specific rule to cover all circumstances. we should have a decision by the end of june. >>> the high court also handed the epa a big win today. the emissions drift into air across east coast state. the so-called downwind pollution rules cost them $800

justice elena kagan reduced hers. kentucky, writing for the majority said the debate was about who -- kepd writing for the major di said the debate was over who could control it. jami floyd joins us. what does this mean. in 2003 the supreme court said that michigan law schools could, in fact, use affirmative action as part of their decision-making process as to who they admit. for the state of michigan they vote to amend the constitution. >> in direct response to the decision. >> you can't use affirmative action as part of the admissions process. this ruling basically says yes, a state can vote not to use affirmative action. >> this goes all the way before. this is what we are talking about, a legacy of tension. in education. >> and other areas of life. >> tension in race and education. interpretation in racial poverty making. that's what justice abdulla sodig said. we'll get to that. >> yes, we'll get to that. >> it this affirmative action or something else. one of our sweets, something that follows us, you and i wer

justice elena kagan recused herself because she was working with the obama administration when this went before the lower court. justice kennedy is an interesting one to watch because he is often a swing vote, and in this case he sided with the more conservative members. justice kennedy wrote the majority opinion saying that this case is not a debate of how racial references should be resolved, he stated that they do not have the authority to over state case law. justice soto myore wrote from the bench that she said that this puts the burden on minority applicants that other applicants that don't have. michigan is one of eight states that gives racial preferences. but there are 42 other states that it can still use affirmative action. this case does not change that. however, they may embolden groups to try to pass laws banning affirmative action there. there is initial signs of how the bans of affirmative action are working at the state level in michigan, also in california, a large state that does not allow for preferenc preferentiat based on race. >> the supreme court heard arguments i

justice kagan talked about the fact that people carry their lives. and another ta minor crimes - people pulled over for a seat belt, that that would be absurd if their phones were checked. >> lots of questions to be ask the. >>> the obama administration scored an environmental victory at the supreme court. justices ruled that the clean air act allows the environmental protection agency to enforce rules regulating smog, solutions in power plants. the pollution has been drifting into the air above the east coast states. >>> in politics a new poll could hold warning signs for democrats heading into november's midterm elections. david shuster is joining us now. how so? >> in the midterms the president's popularity usually has a huge impact on the fortunes of his political party, and the latest a.b.c. news shows president obama's approval rating has dropped from 46% last month to now. disapproval has gone up from 50% to 52%. over the last 40 years, when the approval rating falls below 50%, his party in the midterms lost 36 house seats. when the president'

. >> reporter: when justice stevens retired in 2010, he was replaced by elana kagan. the court's liberal bloc. and ruth bader ginsburg is resisting calls from liberals who want her to step down this year. is that something that you think justices should consider as they're making that decision? >> well, i didn't consider it. >> you didn't? lot of people think you did, no politics at all in your decision? >> my decision wasn't made for any political reason whatsoever, it was the concern about my own health. >> something that justices should take into account? >> i think so. i think it's an appropriate thing to think about, your successor not only in this job, i just finished reading the book by former secretary yates, he thought a lot about his successor. you're interested in the job and the kind of work that's done, you have to have an interest in who's going to fill your shoes. >> if she asked for your advice? >> i would say, she doesn't need my advice. she really doesn't. >> very wise. >> it's interesting, because she asked my advice when she became the senior assoc

elena kagan said that most people do carry their lives on their cellphones, and even those with a minor violation could be affected. they arrest you for not wearing a seatbelt in and it seems that it should be absurd that you can search that person's i-phone. but the two cases before the court involved a gang member and a drug dealer. in both cases, the police searched the suspect's cellphones and it led to additional charges and long prison sentences. the justices wondered if there was a middle ground. would it be okay to search phones for more serious crimes, or look through only some apps. the judges said there should be no cellphone searches without a warrant. >> there's a danger that the searches of our mobile device would be routine. even if we're not charged with a crime. >> the justices have to balance the right to privacy with law enforcement's need to do its job, and that can be very difficult in the digital age, as evidenced by a light hearted exchange in the courtroom, justice stephen breyer saying that he doesn't know what kind of cellphone he has. i can't get into it becau

but today in a 6-2 decision, with justice kagan recusing herself, the supreme court disagreed. while not taking a position on the constitutionality of affirmative action itself, the court says states have a right to vote on whether or not to ban it. justice anthony kennedy wrote for the majority saying quote, there is no authority in the constitution of the united states or in this court's precedence for the judiciary to set aside michigan laws that commit this policy determination to the voters. deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor, but that does not justify removing certain court determined issues from the voters' reach. democracy does not presume that some subjects are either too divisive or too profound for public debate. in other words, the majority of the voters in michigan should decide whether or not affirmative action is right for that states. seven other states ban affirmative action, including california and florida. today's ruling could embolden more states to do the same. and for more on this heated

justice elaina kagan said, quote, most people now do care their lives on their cellphones. others worry that even those being investigated for a minor violation could be effected. justice antonin scalia pointed out, it seems absurd that you should be able to search that person's cell phone. and driven argued that police need a quick look before the data can be wiped or incrypted. the two cases before the court involved a gang member and drug dealer. in both says the police searched the suspect's cellphones that found evidence that led to long prison sentences. is there a middle ground? would it be okay to look through cellphones in only more serious crimes or only through apps. >> there is a real danger that otherwise the thorough search of our mobile devices will become routine with an arrest, even though most people who are arrested are never convicted or even charged with a crime. >> reporter: the justices have to balance the right to privacy with law enforcement as need to do its job. that can be very difficult in the digital age as evidenced by a light heart it's excha

and i find concerning is that we're hearing from the justices, even justices sotomayor and justice kagan at the confirmation hearing supported cameras in the courtroom are starting to say these things. this is the trend. we see nominees start out in support. get on the court and start to change their mind, which suggests we can't really just weight out this issue. it's not just an age issue. this is a concern about the public. we keep hearing this concern that the public won't understand what they're seeing. they won't understand oral argument is just part of the process. they won't understand that the justices have to be harsh on both sides. they might think someone is getting ganged up on. i type this to be a very concerning issue because it suggests that more information is actually going to be bad for the public. that the public needs to be shielded from information. and it does seem to have an elitism to it, that already those of us who do read the transcripts and listen to the audio or read the reports from the supreme court press corps, that we're the types that can understand whe

justice kagan noted how times have changed including the volume of personal information contained onrage smartphone and the fact that most people have expectation of privacy. everything from medical information to gps info that can track where you've been. here's the lawyer for one of the men convicted and sentenced based on what police found on his cell. >> the question is whether somebody's expectation of privacy is reduced. yes the court said somebody's expectation to privacy is reduced but not extinguished. >> reporter: there's a lot of skepticism about allowing an unfettered search through a suspect's phone but also some confusion about,000 craft a rule to give police specific guidance. we should have a decision by the end of june. >>> up next on "the kelly file" the court of public opinion weighs in on president obama's perfor relax into child's pose. sfx: bing. >>who's got two hooves and just got a claim status update from geico? this guy, that's who. sfx: bing. and i just got a...oh no, that's mom. sorry. claim status updates. just a tap away on the geico app. that's why i go

there was a "wall street journal" article i'm quoting s&l kagan and they said a small local advertisersre worried about prices because they would have -- comcast would have half of the ad sales market. what is this about half compared to 8%? is a just a different market and are you including everything? >> i'm looking at the fcc video competition report. they do an assessment of the sectors on a local and national level. they have nationwide numbers and the total number of advertising projects for cable is 7%. now i don't know where this s&l kagan number comes from and as you know an advertising different advertisers want different segments because they want different characteristics. there possibly some markets that don't have as much choice. >> all i would add is our ad sales business tends to be about one third local, one third regional and one third national in terms of how we sell and clearly on the national front there are a number of competitors in on the local and regional front we have been the competitors who have gone and competed against broadcasts stations etc. and they are

kagan did not participate. and steven breyer did vote with the more conservative members and that's certainly a notable fact about today's decision. >> jeffrey toobin, thank you for being with us. our senior legal analyst laying out the implication of this important case. >>> all right. to a story that has a lot of people scratching their heads. a lot of us are talking about the teenager's death defying flight in the wheel well of a plane from california to hawaii. the teenager said he hid in the wheel well of a jumbo jet. it's certainly raising questions, keep among them about airport security. >> and the tsa is investigating how this kid scaled a fence at the san jose airport without anyone noticing. there's another question that everyone is asking why could he have gotten up in the wheel well. our gary tuchman shows us. >> reporter: this is southern california aviation airport in victorville in the desert where airlines all over the world bring their planes they're not using anymore. we're going to demonstra

. >> well, it was a 6-2 vote, and nine justices and elena kagan sat this out, because she worked on the issue in the justice department, but the issue is whether constitutionally michigan voters could ban affirmative action or whether it put minority members in michigan at a disadvantage and whether it made them jump a higher hurdle to change the state law than somebody who for example who wanted to change the admission policies on the legacies or the grade point averages or something else. the court rejected the challenge today, and said that michigan did not violate the constitution when it banned affirmative action and justice kennedy who wrote the lead opinion in the case said that the mind does not presume that some subjects are too divisive or profound for public debate. it was the supreme court's rule that set it in motion in 2003 when it upheld the affirmative action in school admissions at the university of michigan and then three years later 53% of michigan voters went to the polls and banned affirmative action, and the supreme court said that when michigan voters did that, th

for example, justice elena kay beg kagan says it's exactly the same as watching cable. justice john roberts said he could see no other reason for aereo's technology other than to circumvent township right laws. the lawyer for aereo says our technology is special. it helps our customers to individualize and access the programs they want to see, bill. >> peter, the magical question ultimately. what if aereo wins? what happens? >> well, the broadcasters and analysts are saying that the networks could perhaps start their own streaming video services that you pay for to compete with aereo. they could start their own pay cable channels. they could start moving some of their best programming, like their sports shows, to cable, pay cable channels. here's what the lawyer for the broadcaster said. >> if a company like aereo can somehow provide content to lots of paying strangers without engaged in a public performance, i think the networks at least some of them will have to rethink the way that they provide content. >> and the court is expected to rule on this case by the summer.