bush the presidency justice antonin scalia wrote in his opinion the counting of votes does in my view threaten irreparable harm to petitioner george w. bush and to the country by casting a doubt upon what he bush claims to be the legitimacy of his election i guess denying the guy who actually won the most votes in florida al gore the presidency did not constitute irreparable harm to scalia and i guess it was important to mention that scalia is son worked for the law firm that was defending george w. bush before the high court just like it was important to mention that clarence thomas' wife worked in the bush transition team and was busy accepting resumes from people who would serve in the bush white house as long as her husband stop the recount in florida which she did. and more than a year after the election a consortium of newspapers including the washington post the new york times and usa today had their own recount in florida and manually county every vote in a process that took almost a year and concluded that al gore did indeed win the presidency in two thousand as the november

if you have the either of the majority decisions, justice scalia arguing that the violent video games reminded him of grimm's fairy tales, homer's odyssey, this is a kind of extreme that's laughable. >> let me jump in here, a concurrence with justice samuel alito and described the content of the gams at great length and clearly justice alito is disgusted at what he's saying and nonetheless joins scalia. the problem is not the amendment, but the low culture in this area and others and the first amendment is simply there standing to afford these protections and the problem lies with the culture, not the constitution. >> i have to dispute that, dan in the sense that the lack of discrimination in these judgments, i mean, the ka capacity to discriminate, which is to tell the difference between one thing and another, is the bulwark of intellectual capacity and sorry to say that our justices have shown themselves to be mightily lacking in these first amendment cases? >> colin. >> i think 0en the fairy tale point that dorothy is mentioning to elaborate further, there's more to it than that. t

basically what justice scalia wrote is, we're not going to have an exception for violent materials. we've never had an exception for violent materials for children. we've read them the grimm fairytales and they're violent and we think that's ok. that's what california was arguing for saying these video games inspire violence. and they can be dangerous to children. and the court rejected that idea saying, studies really don't show that. and while the court has in the past carved out an exception for sexually explicit materials, that you can't sell so-called girly magazines to minors, you can sell them plenty of violent stuff where bodies are torn apart. >> in your conversation with justice ginsburg, what did she say it was like to have a court this year with the first time three women on the bench? sn >> she said it was distinctly different. they sit by seniority. so all the women aren't clumped together. they're mixed in with the six other men. she said, you know, it looked like we're here to stay because it looks like we're really allowed up there. when you walk in it doesn't look

basically what justice scalia wrote is, we're not going to have an exception for violent materials. we've never had an exception for violent materials for children. we've read them the grimm fairytales and they're violent and we think that's ok. that's what california was arguing for saying these video games inspire violence. and they can be dangerous to children. and the court rejected that idea saying, studies really don't show that. and while the court has in the past carved out an exception for sexually explicit materials, that you can't sell so-called girly magazines to minors, you can sell them plenty of violent stuff where bodies are torn apart. >> in your conversation with justice ginsburg, what did she say it was like to have a court this year with the first time three women on the bench? sn >> she said it was distinctly different. they sit by seniority. so all the women aren't clumped together. they're mixed in with the six other men. she said, you know, it looked like we're here to stay because it looks like we're really allowed up there. when you walk in it doesn't look

and the view of a lot of the justices, specifically scalia, is if the statute is wrong congress ought to fix it. we're not the legislature. fail to take the responsibility. >> just one brief corrective or possible disagreement with my friend, ron, and about whether or not we can look at this term and say, well, judges in the lower courts don't care about what the supreme court believes or care about law. i mean, after all, the number of cases the court is taking now is a lot lower than 20, 30 years ago when they were taking 160 and reversing roughly the same numbers. i think one interesting thing that's happening is, sure, there are those judges who really don't care about the court. there are also an equal number now of judges who really care about the court and who are distancing from the denial. i am thinking about one in the ninth circuit writing opinion after opinion criticizing his colleagues when they are defying the supreme court. that becomes an important temp late for both the solicitor general's office and the court more generally just how to think about a case. so in the a

charles evans hughes, william brennan, earl warren, benjamin cardozo, felix frankfurter, antonin scalia, oliver wendell holmes jr., j. skelly wright, david bazelon and then a lot of other folks. but of all of those it seemed that i saw benjamin cardozo the most and he's the common law man. why? >> guest: because law is actually no different now than it was in roman times. law, the complex relationship between guidelines and flexibility, is something that human beings have been struggling with for as long as there's been civilization. these issues have all been thought about before. benjamin cardozo, at the end of a period beginning at the turn of the century, when people said, "we thought we could turn law into a science," had a series of lectures at yale that were brilliant. i mean, i encourage everybody to read them. one's called "the nature of the judicial process," where he says, basically, law can't be like a perfect letter-writing guide. you can't create the certainty that isn't available elsewhere in life. we can use guidelines and rules to an extent, but we always have to fall b

. >> one reason is scalia, who i have enormous respect for, has a ex passengersive view of the firsthand. and was in on the decision that said the flag can be burned and this is a -- form of expression. >> without punishment it can be burned, free speech. >> and under freedom of speech -- >> that's correct. >> but however, all the constitutional amendment would do i think is say that the states may outlaw the burning of the flag. i can't believe the constitution would outlaw that and have federal agents running around the country trying to stop. it i would -- i would -- disagree with the decision, but i this the amendment could pass. >> there's no question the states do have that power if the -- >> not now. >> if the states chose to do it. if missouri wanted to say -- >> you can burn the flag in its protected -- >> the other way. you cannot desecrate the flag. >> no, no, no. you can desecrate it now because of the -- >> i understand. i'm saying the state could take -- have an amendment to prevent that desecration. >> if the amendment passes, the states could pass a law, correct. >> and t

rugby sevens with a phony an eye on the european champions cup was a region side v.v. a pattern of scalia along a trifle for the fourth straight time since the tournament recount four years ago carmen records. the rugby sevens european champions cup was four years old the same two teams had fought out the last three finals both of them russian the cup holders to be korea would be their competitors from the so to education domestic champions you chris another these turn around they came across each other in the samis but the didn't affect the outcome. maybe. we could break their luck scoring a couple of tries early in the game the russian national team skipper dmitri put off getting in no one here to give the most caribbean side a faith in the advantage the game was completely dominated by put my school here only let their opponents produce a single troy setting the final score of twenty two for the second semi for no so another russian team empiria face leadership group presenting friends with both sides giving their all to when it was imperial finally belted out to the final letter said

judges were the kings of america with nobody who had the power to undo their decisions but that's what scalia and thomas roberts and alito want you to believe that they can make george w. bush president without any appeal that they can make money and a speech that they can turn corporations into people and the rest of us have no say in and they're wrong it's not what the constitution says we don't have kings in america and it's time to seriously debate and challenge the doctrine of judicial review the claim by the court itself that it has that power as thomas jefferson wrote if you give shiri of the united states is the subtle core of sappers and miners constantly working underground to undermine our constitution i will say that against this every man should raise his voice and more should uplift his arm why because jefferson for judges to usurp the powers of the legislature is unconstitutional judicial tyranny one single object will entitle you to the endless gratitude in society that of restrain judges from usurping legislation the power of we the people should be with the people and their

you know, i have the feeling, actually, that justice scalia has seen my work. reading the decision, i thought that he had actually come and seen my work and tim's work, so maybe he will come, and i would be curious-- maybe that'll be my next piece. so you'll take this national-- colleges and universities. do you get a different reaction at all from college students than you do from whatever you'd describe as your regular audience? the reaction varies wildly from-- you know, i did this at a small college in michigan, albion college-- 300 people, standing ovation. i did it in upstate new york, and at a certain critical moment in the show where i say all of the negative things that writers said about us and that they're true, and half the audience got up and left. so it--it keeps it fresh, because i'm not just running it in one place in the same old-- it is a conversation with the audience. this has been a wonderful conversation. thank you so much for joining us today, holly. thank you, ken. i'm ken paulson, back next week with another conversation about the first

least several of the justices including the female justices who defended the vermont case joined scalia'sextremely broad commercial-free speech case in a violent video game case and violent videogames are necessarily about how we organize sites -- organizer sophie there. >> there are people who attack those cases as well. they are just the multibillion-dollar game industry and i don't think that is the way most people react to it. there is more of a real free speech issue there, whichever way you come out on it. >> but they didn't write separately in scalia's opinion. it is hard to square. one was decided on thursday, a anti-commercial speech, lower standard, lower scrutiny standard and then the next one on monday. it is very hard. jeff i was going to call on you anyway. >> i don't think the majority of the videogame cases conceives of it as a commercial speech case, commercial speech case being involved in marketing products. this was taken as a pure free speech case case akin to shakespeare or fairytales are novels. so it was not speech about marketing videogames are commercials for vid

for giant corporations like the ones his representatives and owners regularly wine and dine antonin scalia and clarence thomas and who frankly are paying thomas' wife salary for letting the deputy o. poison us and kill off the environment also that more trans national corporate profits can be piled up and not once has our supreme court stepped up to say the treaties should not trump us or in matters of protecting consumers or the environment but when it comes to killing a human the supreme court gives rick perry the green light this is insanity just goes to show how corrupted our supreme court is by transnational corporate interests now care about human rights and what sort of danger they're putting americans abroad in because of their ruling is only care about corporate profits and since no corporate profits were at stake in the garcia case and you are damned if international law was violated. it's this swiss cheese approach to american sovereignty that is destroying our nation it's making us a slave to so-called free trade and at the same time making us a pariah in the international comm

princeton who is glenn beck's mentor and who teaches jurisprudence there who's an advisor to antonin scalia on the supreme court and has pushed the roman catholic church to the far right here in america on things like stem cell research reading something like the manhattan decoration it's two hundred fifty evangelical leaders and roman catholic bishops signed on to calling for disobedience of the law when it comes to abortion rights family rights in terms of the ready paid people the marriage stem cell research cetera et cetera it isn't that they are pushing people to commit violence or should be blamed for this man's violence i am simply saying the context here is not an isolated incident of it to range psychopath or a serial killer who's just raping women and throwing them in alleys this was a political act planned for years by fifteen hundred page manifesto and the ideas expressed by this killer and the reasons not for the killing but his reasons for fearing europe is going to be taken over by them are echoed by an entire rising right wing slash fascist movement across the globe right no

predate that judges scalia -- to say that judge scalia saw it as necessary and proper. the safest course of action will be to follow the majority and see them as two separate things. i would like to turn -- >> one last question. the government's position is you do not need to look to the necessary and proper cause. you can sustain this regulation of purely interest-rate activity under the commerce clause? is that the government's position? >> we dio not think it matters. >> you can sustain it under the commerce clause. >> yes. >> you are running out of time. why do not you go to the tax incentive issue. >> ok. >> tell us why this is a tax. >> i want to get out the second argument for the commerce clause. this is an overall comprehensive regulation. even if you do not see the menem coverage as economic, it is still constitutional. -- the amendment coverage as economic, it is still constitutional. it functions like an act. -- asa tax. cbo found it would reduce the deficit. >> the problem you have is when you look at the text. that is not what congress said. congress said

as the general said, justice scalia is so clear about that, it's just been necessary and proper. he's trying to project the majority. >> i'm asking the flip side. can you get at it and articulate the doctrine into the commerce clause or do you have to bring in the necessary proper to have? not whether it can stand alone. that's my question. >> i find it preciously difficult to explain why it is the federal government gets to regulate substantial effects without relies at least in part on the necessary and proper clause. >> okay. that's what i thought. it's hard to read the cases to know what's going on. >> we thank you for your argument. we are going to take a 15 minute recess. then we'll hear from mr. carvin. court will be in recess. >> all rise. mr. carvin. we are now hear from you. >> chief judge, may it please the court, i represent the private appellatees. i'm like to start with the are we regulate health insurance, payment, and does it matter? as a factual matter, it's undisputed it's only regulation of health insurance that's going on. you have to pay a penalty if you don'

was seen to be responsible the same way most comes down and justice kennedy and you know, the way scaliawill quote but what about justice kennedy? with something goes the wrong way they point* at candidate -- kennedy and it was the same with roberts and he took it too hard. and it seems that the public opinion that was amassed against the core in the repudiation of conservatism of the 1936 landslide seems to have a real effect on roberts and he finds himself back in the camp of hughes. >> host: to finish the narrative, how did the plan dae? >> guest: many of roosevelts of pfizer's expected now the court has switched getting the results he sought not just minimum wage but zell wagner act the nlrb act that was upheld the first is in march the second in april than social security which everybody thought was doomed. throughout the period, commentators and roosevelts of pfizer's said give up the fight. wait to see if roberts and hughes go back to the other side. so here is the main reason. because he does not believe for a minute they are in the liberal camps and he will flip again. the secon

looking at the statute the justice especially scalia is if the statute is wrong congress ought to fix it. we are not the legislature. they ought to take the responsibility. >> one brief corrected for possible disagreement with my friend about whether or not we can look at this term is the judges in the lower courts don't care about what the supreme court believes or cares about the law. the number of cases the court is taking now is a lot lower than 20 or 40 years ago when they gained 130 roughly the same numbers and i think one interesting thing that's happening is true, there are those judges who don't care about the court. there are also an equal number of judges who care about the court and are dissenting from the denial of the entente cases. i'm thinking of the judge in particular in the ninth circuit riding wonderful opinion after opinion, criticizing his colleague when they are defining the supreme court, and that becomes an important template for both the solicitor general's office and at the court more generally on how to think about a case. so in the ashcroft versus al-kidd

so that's justice scalia, my former common-law professor, who wrote the opinion, the majority opinion in the case. and what they did, they struck down the law and senator leland gee said he may try to craft a new law that will be more in line with exactly the language of the court. but in the meantime, the industry's changed dramatically. lot of people stopped carrying violent video games, big chains did. the rating system that the industry did got better. you know, you can go to commonsense.org and see any rating of any video game. there was a ton of good stuff that came out of the whole controversy and the ruling this week was sort of a be lated ruling, but from a kids and family standpoint, is not a good ruling period. >> tell me what this does mean to kids and families. obviously parents have to be more pro active. >> it basically puts the honus more on parents. you have to go to commonsense.org or at least look at the rating on the box and know more about the content of the video game. particularly if you have boys. girls and boys play video games, but boys tend to be more -- add

. >> look, scalia is an honest guy although he has his ideology. i don't see how he can support this. this is a game. not hoechbt law making. whatever side you're on, this is not the way to decide the issue. it should be decide and a principle, a right or not a right. thank you for coup coming on. >> thank. >>> after gary sinise is going great work for wounded soldiers, when we return. this is "hardball" on msnbc. >>> general david petraeus, unanimously confirmed by the u.s. senate at the new director of the cia. the vote was 94-0. pa tray top commander in both afghanistan and iraq before that takes over for leon panetta, moving over to defense secretary. panetta's nomination also unanimous. we'll be right back. >>> ever since we went, everyone recognized gary, but he didn't know who he was. all they knew was, it's lieutenant dan. they didn't know it was gary sinise. >> if i had a nickel for every time somebody called knee i could retire just doing uso shows. >> great stuff. eight years ago, gary sinise, forrest gump's lieutenant dan, formed a lieu

justice scalia said. it is intended to put certain thing, beyond the reach of transient majorities. that's the language of justice jackson in a famous case. the point of the constitution is that majorities are dangerous and we have to protect against them. hence, what oliver wendell holmes said, if my fellow citizens want to go to hell, i'll help them. because that's my job. he said they exist to majorities, that's wrong. >> that's great on paper when is where it's written. when it makes the transition from parchment to pavement. there's the rub. when i'm talking about the document being living and vital i'm talking about the interpretation of it. i'm talking about the meaning of it. i'i'talking about the symbolic power, the purchase of notions of freedom, justice, equality and dem democracy, they must travel into our common humanity. i'm suggesting that that document is critical to the reinterpretation of people of color, and women. we were rejected into the mainstream of america. we're not for some vibrant reinterpretation of that document and appealing to its living legacy. none

the view of a lot of the justices, specifically justice scalia, is if the statute is wrong, congress ought to fix it. >> just one possible disagreement -- about whether or not we can look at the turn and say judges do not care about what the supreme court cares about or believes, the number of cases is a lot lower than 20 or 30 years ago where they were taking 160 and reversing them at roughly the same number. one thing that is happening is there are judges that do not care about the court, but there are also judges that really do care, and our dissenting on bond cases. i'm thinking of the judge in the ninth circuit running opinion after opinion criticizing colleagues when they are defying the supreme court. that becomes an important template for the solicitor general's office, and the court more generally, on how to think about a case. a brilliant opinion was written, and it is decided ultimately in what the supreme court said. >> i agree. i do not mean to paint with too broad of a brush, but there is a brush their. >> it was -- it would be interesting to have them both in the same

supreme court will do because they can't make themselves think even in a hypothetical way as a scalia or an alito does, then they're not going to be terribly good at an nor tating the court's doings. so, indeed, it has tended to reward professors who may indeed be of liberal premises, but at least take the time to treat seriously the ideas that differ from their own. and, indeed, you have seen quite a substantial body of liberals who have made an effort to understand conservatives from elena kagan on to many other institutions as well. and i'm not sure it's only thought, there may be some feeding in from the fact that lots of very bright people, um, go into law for many reasons other than changing the world through politics, and they need to be catered to. the views of lawyers generally in elite practice after they get out of law school are more democratic than the american average but are not nearly as left wing as the law schools. so, you know, there are a number of influences on them because law is, inevitably, going to be more real world constrained than sociology or anthropology.

ginsburg, kennedy, scalia, and breyer. do you think any of them will leave after the next presidential election? but justice kennedy wait for a republican? are they all going to stay on well past the president's term is elected in 2012? >> the justice ginsberg say she had a piece of art that is being loaned out and that was her way of saying -- >> it seems to me that the sitting justices would look at the example of justice o'connor who left the court to care for her ailing husband. my distinct impression is that justice o'connor really wishes she was still on the court. once you're there, you really do not want to leave unless you are justice souter. i do not know what their health conditions are like, but i think they will hold on to their seats regardless of whether or not it is an election year. >> as justice scalia likes to point out, they work for free. it is really their contribution to the country's budget problem. >> just a quick point on the confirmations. several weeks ago, the u.s. senate took up the trial cour

because i think about what justice ginsberg referred to justice scalia's opinions. she said it's intention -- it's focus on what attention what distinguishes individual class members rather than what unites them. what were the things that united you? >> an opportunity to have our voice and our complaints addressed. as to wal-mart's corporation, there are many wal-marts but we are spread apart. it's not that we can come together socially. we come together on the premises that we work on an environment that is very unfair in the treatment of its employees. we have many complaints but this is just two that have come forth. we are trying to unite without having to be under the intimidation of losing your job just because you speak out. we are in a very intimidating environment. so this avenue was one that would have allowed us without the fear of rhett bution is to come forth and have our complaints addressed. >> are you going to give up now? >> absolutely not. the best is yet to come. >> thank you. >> you're welcome. >> professor hart, will the wal-mart decision that w

they said justice thomas and justice scalia should have recused themselves from that vote. you are darned right. people inifficult for the executive and legislative branches to repeal an act of the supreme court. it's impossible. we can amend the constitutioor pass laws that effectively nullify supreme court decisions, but it's difficult. i think the caller is definitely pointing to one of the biggest changes that will affect the 2012 campaign as opposed to what happens four years ago. that is the citizens united ruling which opens the door for unlimited union and corporate contributions. in ways, what really makes this different is the proliferation of organizations which we cannot see into. we cannot see their books. these are the so-called are title one 2-4's. we just at the close of the second quarter a all the figures are not in from some candidates. some are waiting until their paperwork is due in two weeks by the federal elections commission. the third quarter closed or rather the second quarter closed on a thursday. some people have commented that there is not as mu

with regard to the supreme court ruling, even justice scalia made it clear that waters that are adjacent to navigable waters should be federally regulated and protected. so the statement that was offered in the debate is not entirely accurate. i would also mention that e.p.a. does have an office in montana and in fact the people who were adversely affected by the oil pipeline leak that put a considerable amount of oil into the river, they are saying that e.p.a. was wonderful, tremendously helpful to them. and that's what e.p.a. wants to be now, not only to individual communities adversely affected but to the businesses, to the mining interest, to the farming interest that need clarification on what waters are appropriately under federal jurisdiction. so let me now yield back my time to the distinguished gentleman from indiana. the chair: the gentleman from indiana is recognized. mr. visclosky: i yield back the balance of my time. the chair: the gentleman yields back the balance of his time. >> i move to strike the last word. nebraska is recognized for five minutes -- the chair: the gentl

scalia would probably say that. that is a little hard. host: maryland, robert on the independent line. caller: you can cut me off, but give me a minute to make a statement or two. and seven times during the last political administration the republicans passed this debt ceiling. seven times. nothing was said about it. they took the money and they rerouted all of these taxpayers money straight to the credit people who control all the money. they sit on it and they are hoarding it. host: let's ask our guests when it was raised in the past committed to constitutional part of this ever come up? did people reference the 14th amendment then? guest: not really. there has been very little discussion on the debt ceiling. now a lot of people are finding out. up from my perspective, it is nice that you people are reading my article, but it has never come up very much. they can find it on www.sfrn.com and type in my last name under the list of my publications. it has not come up a lot. when we raised the debt ceiling, how much did we raise it? when do

scalia would probably say that. that is a little hard. host: maryland, robert on the independent line. caller: you can cut me off, but give me a minute to make a statement or two. and seven times during the last political administration the republicans passed this debt ceiling. seven times. nothing was said about it. they took the money and they rerouted all of these taxpayers money straight to the credit people who control all the money. they sit on it and they are hoarding it. host: let's ask our guests when it was raised in the past committed to constitutional part of this ever come up? did people reference the 14th amendment then? guest: not really. there has been very little discussion on the debt ceiling. now a lot of people are finding out. up from my perspective, it is nice that you people are reading my article, but it has never come up very much. they can find it on www.sfrn.com and type in my last name under the list of my publications. it has not come up a lot. when we raised the debt ceiling, how much did we raise it? when do

they said justice thomas and justice scalia should have recused themselves from that vote.ou are darned right. people inifficult for the executive and legislative branches to repeal an act of the supreme court. it's impossible. we can amend the constitution or pass laws that effectively nullify supreme court decisions, but it's difficult. i think the caller is definitely pointing to one of the biggest changes that will affect the 2012 campaign as opposed to what happens four years ago. that is the citizens united ruling which opens the door for unlimited union and corporate contributions. in ways, what really makes this different is the proliferation of organizations which we cannot see into. we cannot see their books. these are the so-called are title one 2-4's. we just at the close of the second quarter and all the figures are not in from some candidates. some are waiting until their paperwork is due in two weeks by the federal elections commission. the third quarter closed or rather the second quarter closed on a thursday. some people have commented that there is not as

there might be some who say we should read it literally, or look at the text of the constitution, scalia would take that view. even the text here. it's hard to interpret in the context. >> host: we'll go to maryland, robert independent caller. >> caller: how are you doing this morning? i hope you don't cut me off. give me a minute to make a statement or two. seven times during the last political administration the republicans have passed the thing -- >> host: debt ceils. >> caller: debt ceiling. seven times. and nothing was said. they took the money, rerouted all of the taxpayers money straight to the credit people who controls all of the money. >> host: okay. i got your point. why don't we ask our guest about whether it was raised in the past -- >> for more of this go to the web site, c-span.org. the senate is returning after party lunches. they have been debating a nonbinding measure to contribute to deficit reduction. appropriations committee. this bill basically marked its spending level to the level approved by the house of representatives that passed subcommittee, full committee, a