justice kagan: but nothing else would. in other words you have to have a listen specifically and this conduct created a serious risk of injury. menendez: if congress chose that as a solution, yes your honor. i think this demonstrates why the seats be left to congress. justice breyer: extortion dozens have that. menendez: extortion is an enumerated offense and that would pose the additional solution, your honor justice breyer: is there any crime like that? what is the crime like that? menendez: there's 200 crimes like that. justice breyer: in the first one, use attempted use threatened use of physical force and are simply adding to those three categories, you'd say, or risk or serious risk? menendez: has as an element the of a serious risk or a serious potential risk. justice breyer: of? menendez: of injury to another. it is up to congress how they choose to define it but if they wanted it -- to how closely the register all clause -- if they want to go closely to the status quo, were cars to choose that, than requiring the

in the eighth against the united states that kagan cited dr. seuss "one fish, two fish, red fish, bluefish" as legal authority for the proposition of a tangible object. and in the spiderman comics and quoted from them. is the court just getting more informal across-the-board? is kagan an outlier on this? is that change in the atmosphere around their? >> the chief justice seems to be picking up a little bit in that writing style. in the case decided monday, he raised "what chumps!" there is a delicious twitter feed and i will send you the hashtag but justice scalia made up "jiggery pokery" and is that exists? >> yes, i think it does. >> but anyway, there is a twitter feed that says he should write the name and title of children's books. [laughter] >> justice scalia also took center stage a little when he said he was outraged -- said when you are outraged, just consult the nearest hippie. [laughter] that is sort of another hashtag too >> also showing his age. do we have hippies anymore? >> i thought it was interesting, too, that chief justice did

. >> justice kagan, we know because of the properties of this drug. the way when the drug was being tested and introduced, it is not used for the sole purpose of preventing somebody from feeling pain during a painful procedure. >> i thought it wasn't used for that purpose just because we don't know whether it's capable of being used for that purpose. as opposed to we know it's incapable of being used for that purpose, if you see the difference. >> i do see the difference, but i think what's important here is that this court in baze explain that an important dose on yates the concern that the prisoner will not be -- >> why is oklahoma not using that drug? >> it didn't using it -- you could ask me friend here. >> you don't know? >> the finding here is that it was unavailable at that time of the hearing. >> let's be honest about what's going on here. executions could be carried out painlessly. there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide and i assume that those are carried out with little if any payn

and yet justice kagan who has never been married i wonder if she thinks marriage is essential to her most profound hopes and aspirations. justice sotomayor signed that opinion. and what i thought was the most interesting thing about that footnote was actually not the reference to putting his head in a bag, but what he said about even as the price to be paid for a fifth vote he wouldn't join such as opinion. what we've always heard from the justices is they don't trade votes and they expressed their own views. was he lifting the curtain on the vote? >> no way. kennedy was the one who wrote it and kennedy would have been the fifth as a more conservative member. as we all know, this was kennedy's error of the law. kennedy was not a reluctant fifth to sign on to with the liberal owes gay marriage. and actually, didn't we just have -- oh, justice ginsburg at the american constitution society addressed the vote trading/horse trading idea and says it doesn't happen at least among the liberals. no. >> you could mention the kennedy opinion where people write separately and more money protecti

is kagan an outlier on this? is that charnging around there. >> the chief justice seems to be picking up a little bit in that writing style in a case that started monday. he had the phrase, what chumps, exclamation point. scalia is still the world leader. i think the justice made up the term jigery pokre. >> yes. there is this delicious twitter feed which talks about how justice scalia might rewrite the names of children's books. the one i like in particular was charlie and the closely held religious chocolate factory. >> justice scalia also i thought showed his age a little saying just consult the nearest hippie. that's sort of another hashtag too. the nearest hippie. >> also showing his age somewhat, i think. >> do we have hippies anymore. >> i thought that was interesting where he did that in the same-sex marriage where he was talking much more directly where he said, don't celebrate the constitution. it was a very direct sort of message in a way that i don't think i have seen him use before. that does seem a

kagan, i appreciate you joining me. when you heard the news today, what was your reaction? initial reaction was one of shock and disbelief. i don't know, at first, i didn't really want to believe it, especially with the report that he was 41, he was 24. but once it was cleared up that he was 24, i definitely knew it was muhammad. >> so you went to high school with him. what was he like? >> we went together and he was kind. he was funny. he always had a witty comment. he liked to laugh. he was really smart, even though he was kind of like a jokester, he didn't let it affect his grades at all. i distinctly remember in the sixth grade, we had class together and he was one of the highest grades in the class. he was a good guy. you wouldn't think that he would do spg like this. >> so nothing like this. >> no. >> so i want to ask you then, i want to put up a picture from the high school yearbook. there's a quote in there that says my name causes national security alerts. what does yours do? do you recall that? >> yeah, i remember that for his senior quote. it's ironic now, morbid

kagan cited dr. seuss "one fish two fish, red fish, blue fish," for the proposition that a grouper is a tangible object. in the spiderman case, she cited spiderman comics and quoted from them. is the court just getting more informal sort of across the board? is kagan an outlier on this? is that sort of changing the atmosphere around there? >> the chief justice seems to be picking up a little bit in that writing style in a case that was decided monday. the case said what chumps, exclamation point. scalia is still the world leader. i think the justice made up the term jigery pokre. did that exist before? >> yes it does. >> that exists? >> yes. there is this delicious twitter feed which talks about how justice scalia might rewrite the names of children's books. the one i like in particular was charlie and the closely held religious chocolate factory. >> justice scalia also i thought showed his age a little saying, just consult the nearest hippie. that's sort of another hashtag too. the nearest hippie. >

. >> if that were put up before me today, and i think that i mentioned ginsburg and kagan as being two that had been conducting same-sex marriages on their spare time and did not recuse themselves, i would put up the vote to remove them from office. and i'd like to see that case heard again. and it would come down 4-3 and in the end it would come back to the states for that decision where it should be. i don't know if the public is ready for that. >> that's a nice caveat. i'm from another planet, in other words. here's what ted cruz told the local press in iowa. >> there is right now a liberal intolerance that seeks to punish and persecute those who follow a biblical teaching of marriage. that is scary. it is wrong. and it's contrary to who we are as an american people. >> ted cruz, the senator, will be on tomorrow. first of all, impeachment. it's always the play for the side that loses. for some reason the democrats don't call immediately for impeachment, but republicans do. >> sometimes do. i think there are plenty of -- >> let's get rid of these -- >> probably not in the judicial co

[laughter] but all these cases between the negligence standard of a couple questions from justice kagand maybe a follow-up question with a recklessness standard. all the court wound up doing was saying and in addition to. for the purposes of the statute to have some sort of intent it would not cross recklessness off the list. the onus that it took the third longest to decide. when it is the h / one decision with the concurrence from justice alito and a dissent from justice thomas you figure something else happened and i presume there was a danger with on the recklessness grounds. in a when the papers of the court are released and will not live long enough to see justice souter pain from by to see what was going on is there was a recklessness standard but there was an early stage votes for negligence then to go to the third circuit but to be like the conservative justice ginsberg most are happy to answer the question to ignore the case but justice alito likes to write the brief and he did a very good job with this issue how will it was preserved so it will be interesting to see what happ

. >> reporter: kagan wagner a friend of the suspect from high school, was shocked to learn he was behinduthless killings. >> you would have never thought that it would be this kid. this good-hearted all-american great, friendly outgoing kid would hurt and kill several people. >> reporter: his former high school teacher just as surprised. >> until you got to know him he seemed kind of serious. the more i had him in class, he turned out to be a cut-up. he was a joker all the time. >> reporter: sources tell abc news the young man was not under active surveillance by the fbi. a classic so-called lone wolf. the suspect wrote in his 2008 high school yearbook that, my name causes national security alerts. what does yours do? >> it is a very, very tricky game for law enforcement with lone wolves as to actually know that, a, they are there, and b, more importantly, that they're going to launch an attack. >> reporter: local police and fbi, desperate for clues, are scouring his home in nearby hixon, tennessee. in a silver mustang he abandoned at the scene. authorities are also investigating if abdu

in gilbert it was unanimous as a result, as elizabeth said, but three of the justices, led by kagan, who has written a lot about discrimination including a law article objected to what she ser peeved -- perceived to be a sweeping statement from justice thomas saying all content regulation immediately triggers strict scrutiny. she was of the view of this was an easy case. if you are going to treat church signs different from regular public signs urk need the laugh test. if it doesn't pass the laugh test then you don't have to make the pronouncement. but you can see this from the citation that the proposition that everything gets strict scrutiny. and the thomas project to expand political to commercial speech and indeed his citation for the proposition was the surreal pharmaceutical marketing case. so on the one hand we have a decision which very aggressively expands the realm of strict scrutiny and then you see it in action as andy was saying in williams healy where under no conceivable rational system can this be -- this particular regulation, whatever compelling interest or not can

to echo something that justice kagan adverted to in the early argument, we are talking about a construction of the word legislature passed all time place or manner regulations. >> why does your interpretation make the worse by the legislature thereof entirely superfluous rexnord why don't they just say the rules will be prescribed by each state? >> because as the court explained in smiley what the framers wanted was a to be done by a legislation. that is come it wanted a quote complete code of holding congressional elections to be enacted. >> i would i understood your argument to be that as long as it's an exercise of legislative power, that it set aside. if you have for example, a governor doing it it presumably would be personal to delegation either from the people from the legislature. nothing happens until the exercise of lawmaking by the power of the state. it should've been insufficient for the drafters of the constitution to simply say it should be prescribed by each day, whether by referendum, by initiative whether they do it butby what is commonly understood by the legislature, whe

elena kagan, she never s erved as a judge. she was solicitor general and her main case was obamacare. of course when obama came to the supreme court that didn't work crews what people were thinking. it sounds like as a presidential biographer, you are in the same load as michael bash watch. he was bragging about obama being the smarter person -- link the smartest person to ever serve in the oval office. "what is his iq? " host: all right, richard norton smith, any thoughts? guest: i would suggest thomas jefferson and john quincy adams probably are the most cerebral of american presidents. i think woodrow wilson is up there as well. host: the american political science association did a ranking of where the president's stand. lincoln is at the top. of the modern-day presidents, he eisenhower is placing ahead of president obama. clinton and jfk and george bush also ahead of obama. do presidents receive a more favorable view, does absence makes the heart grow fonder? guest: that is a great question. generally speaking, presidents

. >> let me address those losses justice kagan if you look at the various laws put in the appendix, now one of those provisions purports to on his face read delegatory we away from the state legislature. to the contrary i counted 27 delegate authority to the state to implement so if you look at the north carolina provision. >> but delegation is all they are is laws passed not to the legislative process. >> exactly. >> but i would take if your primary argument legislature means legislature there last three legislative control and none of these is there a legislative control there is no legislative participation at all. >> we distinguished to situations we could say the problem is that it was done by the initiative and not the legislature but that is not our position ruth have the same objection the fed was by a gubernatorial eject rigo that what should the merger is that nobody could ever do anything on the one off basis because the court has already said it is okay for a judicial body or the state court to do redistricting of a one-off basis. >> how was that consistent with the argument

. >> that's exactly what it is justice kagan. >> you think there are circumstances in which burning somebody at the stake would be consistent with the 8th amendment? that's an irrelevant point, but you're not certain about that? >> what i'm saying is that the founders say burning at the stake is unconstitutional. it creates an 8th amendment violation. but in your hypothetical, if there was a way to ensure that that was done in a humane way there could perhaps be. i don't think that any state would try to do that because we move forward -- >> that's an incredible answer. you think there are circumstances in which burning alive would not be a violation of the 8th amendment. burning somebody alive would not be a violation. >> potassium chloride is burning somebody alive. it's just doing it through the use of a drug. >> which is what we have here. and here the district court found a risk, a risk that it could not quantify. that risk violates the 8th amendment. again, what this court needs to understand is that the bar bit watts function differently. there was a use that was known to produce a de

ginsburg, breyer, so the mayor, kagan choose to come behind one opinion precisely because of the need to convey that to the country as a whole. some decisions have been unanimous. some have not been unanimous and still have been absorbed and taken in by society. in terms of the issue of backlash, there will be some read it will be odd if there was not. we are still in the midst of social change. but i find it hard to believe that there will be such a backlash that in fact this right will be taken away or that there will be a huge outrage against gay couples. justice roberts tried to say you have hurt yourself. i thought about that when i looked on my twitter feed. i i am a big twitter fiend. you can like the commissioner opposed all the stuff. you know have this link to all the companies that were putting out their brands my goodness, i mean everyone had their thing. this is in the mainstream already. this is not something with a backlash that will include 60 percent of the population. most of the population is pass this because those corporations would not have been putting out that

alina kagan never served as a judge. i guess guess the closest thing she came to federal politics was a solicitor general. her main case was obama care. of course when course when obama care came to the supreme court the first time she didn't recuse herself. i don't know what these people were thinking. there has been a very favorable media, it sounds like as a presidential biographer you are in the same mode as michael bash loss who when he was on with ibis in the morning he was bragging about obama being the smartest guy whoever served in the office. his iq was over-the-top and don said what is his iq? well he's gotta be the smartest guy who's ever been the president? well what is his iq? i thought you knew since you're bragging about his iq. >> any thoughts? >> i'll let michael speak for himself, i think who think who knows who is the smartest president. i would suggest thomas jefferson and john quincy adams were probably the most so lead role of the american presidents. woodrow went wilson is up there as well. >> lin

chanting ] >> those supreme court decisions would have been impossible without sonia sotomayor and elena kaganepublican voters seem to understand that which is why their candidates are always pressed on who they would appoint to the supreme court in almost every republican candidate always as mitt romney did in 2012, always says they would nominate judges like anton scalia. he is always the most common name uttered by republican presidential candidates as the model of who they want to send to the supreme court but has scalia delivered to the democrats the ammunition they need to finally make the supreme court important in presidential campaigns? david axelrod, when you look at what we have from justice scalia in the last week, all of those strange words and phrasings, referring to applesauce and all of that stuff. will democrats, if it comes to it, would some democratic super pac do a tv ad showing what is at stake using the language of scalia and how he referred to marriage equality and get enthusiasm for voters to go to the polls and vote for them. >> i'm sure some super pacs will do that. w

reconsidering the charade refers to the fact that one of our most recent nominees elena kagan wrote apiece when she was a law professor and allow ricky where she criticized the hearings and she called the hearings among other things a charade. she was -- for criticizing the hearings for the most part for them not working the way they should for nominees not really giving forthcoming answers. senators were more or less there to answer questions for the cameras and senators which is going very charade. brown v. board of education was decided and prior to that position at nominees hearings before the senate judiciary committee were hit or miss. some nominees had hearings. some didn't some are open and some were closed and sometimes nominees didn't answer questions at these hearings but with that very controversial decision in 1950 for every nominee since then has come down to a hearing for the u.s. senate judiciary committee and what that means is they are going to get a much closer look at the nominees records their beliefs and it's very important because that nominee will have a lifeti

said kagan wagner to the newspaper. quoting i never would have thought it would -- it would be him. that's a quote. i never would have thought it would have been him. she added that the family seemed normal. quoting again, they were your average chattanooga family. unquote. that of this man now identified by authorities to us as muhammad youssef abdulazeez born in kuwait in 1990. clearly, a high school student in chattanooga. and now dead. not far from this incredible and horrific shooting scene where four united states military personnel have been killed. where authorities now tell us they're investigating whether this shooter, this shooter identified as muhammad youssef abdulazeez inspired isis and whether it was an attack a terrorist attack on the homeland and trying to find out who the man had contacts with and whether he was involved with those of like mind and whether there might be other threats out there and further tell us they have no reason to believe there's no indication that any other federal facilities for reason for undue concern. that said they have increased securi

elena kagan, she never s erved as a judge. solicitor general and her main case was obamacare. of course when obama came to the supreme court that didn't work crews what people were thinking. it sounds like as a presidential biographer, you are in the same load as michael bash watch. he was bragging about obama being the smarter person -- link the smartest person to ever serve in the oval office. "what is his iq? " host: all right, richard norton smith, any thoughts? guest: i would suggest thomas jefferson and john quincy adams probably are the most cerebral of american presidents. i think woodrow wilson is up there as well. host: the american political science association did a ranking of where the president's stand. lincoln is at the top. of the modern-day presidents, he eisenhower is placing ahead of president obama. clinton and jfk and george bush also ahead of obama. do presidents receive a more favorable view, does absence makes the heart grow fonder? guest: that is a great question. generally speaking, presidents leave o

i think it was very important for the other four justices, ginsburg, breyer, so to meyer kagan to come behind one opinion precisely because of the need to convey that to the country as a whole. some decisions have been unanimous that were important. some decisions have not been. and still have been absorbed and taken by society. in terms of the issue of a backlash, there is going to be solved. it would be odd if there wasn't. we are still in the midst of this social change. i find it hard to believe that there will be such a backlash that in fact this right will be taken away in some way or that there will be a huge outrage against gay couples. justice roberts tried to say you have cut off the debate, you have hurt yourself in this. i thought about that when i looked on my twitter feed. i'm a big tweeter. if you use facebook, i post all this stuff. it had this link to all the companies that were putting out their brands. oh my goodness. everyone had their pain. this is in the mainstream already. this is not something where the backlash is going to include 60% of the population. most of

yet justice kagan who has never been married a sign that opinion. i wonder if she thinks it is essential for her. justice sotomayor who was married a few years in her 20's sign that opinion. but i thought was most interesting about the footnote was what scalia said, even for a fifth vote he would not join in opinion. what we have heard as they do not trade votes and they express their own views. what's he lifting the curtain? >> kennedy was the one who wrote it and he would've been the fifth is a more conservative member but this is his area of the law. he was not a reluctant fifth. and justice ginsburg at the american constitution society address the horse trading idea, at least among the liberals. >> you can imagine a decision were people join the kennedy opinion in full during -- full. >> nobody did and there were no concurring opinions. talking about how marriage isn't the only way to find personal full film -- fulfillment. >> maybe they took the advice justice ginsburg took that sometimes it is helpful to be a little death -- daf. >> they may h

and yet justice kagan who has never been married signed that opinion. i wonder if she thinks marriage is essential to her most profound hopes and aspiration. justice sotomayor who was married for a few years in her 20s signed that opinion. and what i thought was the most interesting about that footnote was not the reference to putting his head in a bag but what he said about even as the price to be paid for a fifth vote he wouldn't join such an opinion. what we've always heard from the justices is they don't trade votes and they express their own views and so was he lifting the curtain on the wizard? >> no way. because here's the thing. kennedy was the one who wrote it and kennedy would have been the fifth as a more conservative member but as we all know this is kennedy's area of law. kennedy was not a reluctant fifth to sign on, two the liberals on gay marriage. and actually didn't we -- justice ginsberg at the american constitution society addressed the vote trading horse trading idea and said it doesn't happen. at least among the liberals. [ laughter

imagine what it felt like to join the language for the never married kagan, the divorced sotomayor. so i do think injustice kennedy's effort to say we should no longer demean gay couples who want to get married, there is this possible inadvertent effect on in a sense to evaluate those who never get married or no longer married. i don't think that was his intent. which is why i was trying to separate out the two reasons he could've used established due process violation. that would've been enough because the two others were the one that said how important are the reason this is the most important relationship one can never enter into. but i think it was worth it to go along so long as there is something about equal protection in there. >> perhaps the next two questions reflects perhaps the largest concern about the decision with respect to religion and the church. one of the audience asked in a church refused to marry due to religious beliefs? is the church protect did and similarly, why do pastors fear the intrusion into their day-to-day activity and how can we respond that they are

host: frederick kagan writes in the wall street journal. director of the american enterprise institute. he says the current embargo was implemented by two resolutions. the first barred the sale of transfer to iran of technology that might be useful to a ballistic missiles program. the second does the same for battle tanks, large artillery systems, etc. a resolution that illuminates previous sanctions would allow russia and china to provide iran with any military technology they choose -- eliminates previous sanctions that would allow russia and china to provide iran with any military technology they choose. guest: the genesis of those embargoes were the result of their new their program. passed as part of resolutions because iran violated national agreements on developing, moving forward towards a nuclear weapon. they included conventional arms issues. russia has started negotiations with regard -- with iran with regards to -- how much relief should they get from the arms embargo? in regards to conventional weapons, the u.s. -- the u.n. wou

but in the case of marriage -- two of our justices, taken and ginsburg -- kagan and ginsburg -- presidedny justice, judge, magistrate of the united states shall disqualify -- not maybe, shall disqualify -- impartiality might reasonably be questioned." we have two judges who acted illegally, violated the constitution. that is an illegitimate improper decision. when the highest court in the land has two judges that are that condescending and that willing to violate the law in order to impose their unelected will on the american people then got help us, we are in a lot of trouble. host: your reaction to the front page of "the washington times" this morning. "same-sex marriage ruling gives gun groups silver lining." "could translate to lose interest rich for concealed carry licenses." guest: i know that is trying to put a silver lining all that abominable decision, but what the writers at "the washington times" do not realize is how the supreme court has no problem whatsoever being completely contradictory. if they were a consistent court and used the same logic and followed that, that would

this is an emphatic requirement for a justice and which know justice kagan performed a same- sex marriage. we had two justices that under the laws of the united states as allowed by the united states constitution clear reading, they were disqualified. they were law breakers in order to dictate legislation on a social issue over which they have no authority by virtue of the contusion and the 10th amendment, they violated the law and the constitution and violated their oath. that is dishonorable to be a justice in any court and violate your oath, violate your law and the cop stution. but the law, it is wanting to assure the american people that we are going to be so far above question that not only do you have to disqualify yourself if you are partial, you are biased, or prejudiced in a case but if your imparget atlanta might be questioned then you shall dws qualify yourself, and two justices violated the law the constitution and the oath and dictate the law. and just one time point i would like to make, as i have giving it some thought. what nature would indicate. and my friend knows i was

justice kagan really likes to talk about the facts behind the case and both she and the chief justice va nice come here and listen to my story way of approaching it for the spectators in the courtroom. justice ginsburg takes a lot of time with her reading. she's another one who hands out the rendition of what she says from the bench so we can quote directly from it. we don't know what opinions are coming on what day. so when the chief says jufts spitzer will now announce the opinion in 1442, you're like oh my gosh, what direction will it take by virtue of who is going to read it? for example, that happened in a case when the chief says it's justice kennedy the suspend was hidened by what side he would take. so it's -- they kind of play alone long to make it more of a tale getting to the culmination, the climax at the end with whether they've said yes or no. >> just a post script to what joan was saying about the opinion announcements. from what she said, i think we could all agree that illustrate would sure be nice for the public to be able to hear them, those opinion announcements. b

without obama as president he wouldn't have sonia sotomayor and on the supreme court who inhabit elena kagan. all of these losses didn't have to happen. whatever you think the most important issue is, it is not. even now i get the sense from talking to people you run into democrats say and i've had it. the democrats have gone too far. taking on confederate soldiers and changing the name of the jefferson monument and the fake cases than obamacare and gay marriage. that is that i'm voting republican. americans are about to be outvoted by other voters, foreign voters the democrats abroad in. that is only talking about the political aspect that cares about this issue more than anything else certainly if you are republican. it is more than not in order to bring in voters who will vote eight to two for democrats we bring an extremely primitive cultures on this is most of what i book covers in order to make it short and very readable, 100 pages of footnotes is way shorter than it looks. i ended up cutting 200 pages a month before press. dang rape, chow rape, it happens to us but that's not the only