and scalia set a standard for future supreme court -- scalia didn't even want to admit that marbury versus madison was set in law that allowed him to have a job in the first place. i said you got to give him that. because otherwise you don't have a job. and i'm still not sure he ever said that he would agree that was settled law. but that sort of set the standard and then after he was confirmed i think by 9-0 the democrats started digging in in some of the other nominations that were to follow him and sort of like we're never ever going to let anybody answer as few questions as scalia did ever again in the history of the congress of the united states. and then we had in between before i got back to the white house the bourque fee as co. he did not realize he didn't need to explain anything to the senate of the united states, the judiciary committee and he talked himself into oblivion. and i think it was poor judgment on his part. so now we get the situation that is created by the nomination of david souter. frankly, after spending as much time as i spent with david during the confirmation

merely that it was trespass well the important thing and the upbeat thing about this case is that scalia and the rest of the justices in the majority didn't poor close the option that this would have under the other analysis also been an invasion of privacy in fact he explicitly pointed out that he wasn't foreclosing that this was an invasion of privacy under the cats which is after the u.s. cats case under that sort of analysis he just said that here the obvious answer is that it's an invasion of privacy under the property based analysis so they're just going to stick with that and go with the easy track but in the cat's case was the one where they it was whether or not if you're not going to wiretap somebody at their home but you're going to do it at the phone station is is that still a wiretap is still an invasion of privacy and the supreme court ruled holland that . there what came out of that was an analysis that's based on a reasonable expectation of privacy based in part on your subjective expectation of privacy as well as society's object of a expectation of privacy an expectatio

government program change and welcome back thank you for having me great to have you here with us scalia has this trespass theory that he was in the majority decision the the five not that this was a unanimous decision but but for two completely different sets of reasons for two largely different sets of reasons and scalia said basically this is a property rights thing you're if you're trespassed in somebody's property that's an invasion of their privacy that's an invasion or that's a violation the fourth amendment it's not an invasion of privacy. on the other hand you had four other justices who wrote a concurring but different opinion saying well it might be a trespass but it's also an invasion of privacy. is that concerning that the five justices who really decided the case didn't think this was an invasion of privacy merely that it was trespass well the important thing and the upbeat thing about this case is that scalia and the rest of the justices in the majority didn't foreclose the option that this would have under the other analysis also been an invasion of privacy in fact he exp

scalia set a standard for future nominations. i said you have to give him that. otherwise, you don't have a job. and i'm still not sure he ever said that he would agree that that was settled law. but that sort of set the standard. after he was confirmed 9-0 or something pretty close to that, then the democrats sort of started digging in in some of the other nominations that were to follow him. and sort of like we're never, ever going to let anybody answer as few questions as scalia did ever ever again in the history of the congress of the united states. and then we had in between, before i got back to the white house, the bork fiasco. in short, bob bork didn't realize he really didn't need to explain anything to the senate of the united states of the judiciary committee. and he just talked himself into oblivion. now we have the situation created by the nomination of david souter. frankly, after spending as much time as i spent with david during the confirmation process and visiting members of the united states senate, i was not surprised at all by -- i had not be

justice scalia in his opinion today rejected that argument. he said that the fourth amendment for most of our nation's history has embodied a special concern for government trespasses into the areas that the fourth amendment protects. and those areas are our right to be secure in our persons, houses, papers, and effects. the vehicle is an effect, he said. when the government obtains information through a physical intrusion into one of those protected areas, it is a search. >> brown: he's saying it's different than if the police just followed this car for all that time, something fundamentally different in the technology that's invasive? >> it's actually the physical attachment plus the obtaining the use of it to obtain the information. he said those are the two elements that you need that equal a search under the fourth amendment. >> brown: four justices, this is the interesting part here, they went along with the decision but not with the justice scalia's reasoning. >> exactly. justice skaly... just ti alito wrote separately. he was joined by

>> that is certainty true, justice scalia. and i do think in reno this court described the carlin monologue at issue in pacifica in the following way. it said that monologue was readily identifiable as indecent because it was a dramatic departure from the customary norms for the broadcast medium. i think the kind of nudity -- and i think if one just looks at the video here and sees it, i think it's hard to disagree with the proposition that that is a dramatic departure from what's the norm for broadcast television. >> if they did an excerpt from "hair," could they televise that? >> i think it would raise serious questions. i think nudity is going to raise very serious questions, and i think -- >> in the opera in the "metropolis" case there's a scene where a woman is seen nude entering a bathtub. suppose that were shown, that scene from the opera. >> well, i don't -- i think, justice ginsburg, that in a context-based approach, there's not going to be perfect clarity. we recognize that. but i do think with respect to this broadc

justice scalia said and it's it's true.and going on the internet, doing their own investigations into these individuals and they can certainly turn on and off whatever they like to see. >> gregg: a lot of people worry about the power of the super pacs that raised $30 million in three races so far in the presidential donald test. 12 million alone spent on television in south carolina. steven breyer had this to say recently about citizens united and i'll quote him. there are real problems when people want to spend a lot of money on a candidate, they'll drown out the people who don't have a lot of money. does he have a point? >> it's always been that way, gregg. you always -- old mantra is you have to have money to get into politics and run and have a super pac. but corporations, supreme court ruled do have supreme, first amendment rights of free speech. so we can't squash that through the pacs who are supported by the people. >> the super pacs are regulated. that's by the federal electoral commission. they have to disclose --

>> and what if the president of the united states wants to talk to -- >> he's a friend of justice scaliat person, put it in proper terms, one requirement to run for office and get elected, the electorate that supports you votes for you. this is a democratic process. and irrespective, how you look, what you wear, how you speak, if the voters feel she is not speaking appropriately... don't vote for her, period. >> is there a degree of common sense in the democratic process and legislators should know what is going on? >> we respect jurors's verdicts every day when we go to court. >> but, the judge -- you need to read and write english. >> jeanine: the answer, gentlemen, in 1910, congress allowed arizona to be part of the united states they said there is a proviso you have to be able to read, write and speak the english language to perform the duties of public offers. they didn't -- >> city council, when they conducted meetings they speak in english and spanish, an outrage, voters should decide, period. >> jeanine: go to the money now. who goatsets a million dollars the arkansas lottery. wo

. >> stephen: i'm a constitutional originalist, along with scalia, okay. >> yeah. >> stephen: i do notthink this is a living document. >> well, i don't think it's a dead document. i think, the cool thing about it is we can argue about what it means. a lot of it, you know, like liberty what is liberty. >> stephen: freedom. >> what is equality, freedom to do what. >> stephen: be free. >> yeah, right. >> stephen: is that too tough. coy teach at harvard. right? >> yes, could i take your class. >> stephen: you sure could. you are taking my class right now, mister. >> i can sense that (cheers and applause) >> stephen: my favorite decision is citizens united. okay, i love that. >> i can see that okay. >> stephen: because as we know santaa collar lasouthern pacific railroad corporations are people. >> whether corporations are persons are or not t doesn't necessarily decide the case. the supreme court said that whoever is talking whether it's a corporation or something else. >> stephen: right. >> people have a right to hear what it is saying. and so even if we said in the constitution corporati

then goes on to say what justice scalia says. when you apply -- i read it consistent which is what they are doing is population grows. one person one vote. legislature did create minority whenever the opportunity is, sole we are taking of the population and it turns out we create it as very ambiguity here. >> there is no independent evidence than this was a racial gerrymander. what do courts look at? split voting precincts where you go out and carved and bring in minority voters. it is entirely within one county and the compact district especially when you compare to the district -- >> why do they care that was drawn as a minority coalition opportunity district? just follow precip lines and everything else. >> it is describing what the result of their drying is and that is perfectly legitimate. >> can we infer from the of the reading of the sentence, in the court's view it was desirable to have minority coalition? i draw that inference. >> it is desirable to have minority district. minority coalition district. moreover -- >> you

congress can make them, just as justice scalia suggested. the ministerial excedrin has a long history, but in almost every circuit in -- ministerial exception has a long history, but in almost every circuit did not apply to teachers. >> what congress assume that it applies to the ada? >> we had this debate with justice prior about whether you can say to congress specifically about retaliation cases. that after it emerged at a time when this court -- that dr. image at a time when this court has a position that religious organizations cannot participate in getting public funding even when that they were providing remedial services to low-income students. we repeated that doctrine -- we repudiated at akron, with the court said that you are entitled to participate in providing public services on the same basis as other organizations. that means that you should comply in some instances with the same rules -- >> do lutheran and catholic parochial schools share public funds the same way public schools do? >> no, they don't, but they are entitled to

the closest ally being joseph scalia. his votes and opinions have originally been postured to firm commitments to a government role. such as gonzalez and the strict statutory construction and the opposition to racial preference policies in the affirmative action. and the resolute embrace of federal principles, the interesting case of the united states term limits with the opinion. in 2007, he boasted to the federalist society. one thing i have demonstrated in 16 years on the supreme court is you can do the job without asking a single question. ev end quote. >> with that, i'll draw this to a close. justice sutter's record was summed up. i think sutter was more liberal than those involved in the selection process anticipated. to this day, anytime i go to a conservative meeting, 15 people come up to me and hit me with a sutter two by four across the forehead about bush's second nominee. i think clarence is a solid vote. the supreme court appointments once on the bench occupied closer to the left and right of the spectrum tha

but justice roberts and scalia says the public needs a few channels kept free from indecen indecency. the court appears likely to allow the government to continue to monitor the network bs, but y be less clear about what's out of bounds. >>> nicotine gum and nicotine patches are under scrutiny tonight. millions of people use them, of course, to help quit smoking including notably, the president of the united states. but a new study by researchers at the harvard school of public health and university of massachusetts concludes they have no lasting benefit. in other words, they don't help smokers who quit stay quit. the researchers say using gums and patches is no more effective long term than quitting without them, though a whole lot of people have had success with them, including the president of the united states. >>> on wall street, the dow was up today nearly 33 points. the nasdaq up just two points. >>> up next, as we continue, no snow here in new hampshire. not even close. but we'll show you a place where winter has arrived in a big way. when bp made a commitment to the gulf, we

stealth nominee did not shy away from an escalated war of words with his conservative colleague antonin scalia. a first attempted establishment clause cases suitor began to take the lead on the separation aside, such as in board of education versus the school district, majority opinion, rosenberger versus university of virginia dissenting opinion. thomas remained steadfast in his jurisprudence. votes and opinions have dedicated originalist conservative posture, including firm commitments to a limited government role such as gonzalez versus carhart, majority vote, statutory construction, determined opposition to racial preference policies inherit in the affirmative action, university of michigan case, dissenting opinion. and resolute of federal principles the united states term limits versus thornton, dissenting opinion. in 2007 he boasted to federalist society. one thing i have demonstrated in 16 years on the supreme court is you can do the job without asking a single question. end quote. >> with that, i'll say a few words of conclusion to draw this to a close. justice sutter's record was summ

have been conservatives and they were, in some ways, you felt they were writing to justices like scalia and thomas and roberts and alito and saying wait a minute it would not be conservative to overthrow this law. then the other debate is which way would republicans or president obama be better off? would it be a stinging defeat for obama and therefore hurt him or would it take this issue off the table or even allow him to go on the offensive and say well we do need a national healthcare plan again so it is going to be an extraordinary day when the court rules on that. >> are religious groups involved in that, have they got appeals going for them? >> quite a few, especially from the conservative side. one of the first, original challenges to this healthcare law came out of liberty university, founded by jerry falwell. but there's a lot of conservatives who, not only for their conservative political ideology, but their religious ideology, don't like the idea of the government telling them you have to have insurance. and, that's really what the fight is over is the mandate to purchase ind

it -- it has refused to say that "catch-22" -- it's "catch- 22" -- right over here, justice scalia. [laughter] >> well, there's a bare buttock there, and there's a bare buttock here. and there may be more that i hadn't seen. but frankly, i had never focused on it before. but the point -- >> me neither. [laughter] >> could -- could abc or anybody else rebroadcast the "roots" series? could it rebroadcast "catch- 22," which the commission is now here saying, oh, no, no, no, that was just our staff, that wasn't us. in the "saving private ryan" context, where the commission did say as a commission -- not actionably indecent. >> but your only conclusion from that is that they can't have any rule. >> no. >> what is -- i looked through the briefs. i don't see what you're -- tell me where in these briefs do you suggest what the rule ought to be. >> in our brief, we don't suggest what the rule ought to be, because a, it's not our burden, b, it's not yours, and c, there are any number of options. >> well, we -- well, we have to anticipate what the natural results or consequences of our decisio

either he was duped because i don't think john roberts believed that and i don't believe for a minute scalia who had been through you know the two thousand election believe that. either he was duped or or there was some vision that they had that somehow didn't get played out we all missed any idea what that might be. tom when i think about this i think about the fact that the movements that we've seen that have been successful in pushing for a response to supreme court decisions that that are at odds with where the ordinary people are at it's actually a sterling example of how the checks and balances that our constitution set up are there for a reason when people like this from court justice alito have a genuine belief in a belief system that's at odds with the american people they need a tool an opportunity to restore the balance and so that's why our organization others are actually pushing for a constitutional remedies to this decision that will restore that balance what might the unintended consequences be of overturning citizens united or of or of going full bore and saying ok we're goi

were in agreement on this decision but with different reasons why they came to that outcome justice scalia explained the majority opinion that electronic surveillance if achieved without trespassing on the suspected person's property could count as an unconstitutional invasion of privacy but here's the part the really bugs me he goes on to say that the present case doesn't require the justices to answer that question so yeah this is good news but really we were hoping the justices would take this opportunity to weigh in on the constitutionality of the use of the tracking device itself sadly it looks like they took the easy way out opting not to decide if the trackers and are an unlawful invasion of a person's right to privacy but rather saying that in this instance specifically it constitutes a search let's look at a small victory here and the slap in the face of this ruling brings the obama administration they justify the questionable tracking techniques and defended their actions based on an one nine hundred eighty three court case where the supreme court allowed the government to use tr

like a lot of them didn't really seem too fond of actually dropping at these regulations justice scalia for example said the government can insist on a certain modicum of decency justice kennedy expressed it he isn't interested in seeing a time when celebrities and want to be celebrities have the right to utter profanity on t.v. and radio chief justice roberts said all we're asking for is a few channels where parents can be confident that their kids won't hear profanity or see sex scenes justice alito made a point that this argument could be pointless because broadcast networks could be moved in a few years there were two justices however who did speak out in favor of striking down the indecency laws justice ginsburg said that the expletives are common in common parlance today and i think that children are not going to be shocked by them the way they might have been a generation ago justice kagan was on the fence she said it seems to work and it seems to be a good thing that there is some safe haven but then she went on to say it seems no one can use dirty words except steven spielberg

some people point to scalia with this and the marijuana case reach, but that was scalia's drug war exception to the constitution and is also had writing it from before that make him a safe bet. but kennedy also had a concurrency couple years ago in this case, interpreting necessary and proper clause that does not oppose the use of the commerce clause power to regulate interstate commerce. worry case to come up with we had to interpret a cause on the commerce clause context, there it have to be heightened scrutiny. and i'll see you at the opinion for unanimous court last term in the bond case talking how federal mr. mayor not just as a vindication of what james madison under princeton are applied political theory or whatnot, but ultimately they are to support and protect individual liberty, federalism and structural provisions there. his writings on lopez, although the presidential cases that he's been on leave me to be optimistic about him. without any spin i say it's more likely than not that the supreme court by a site for vocal straight down the individual mandate. what they'll take what

privacy rationale doesn't expand it but it narrows it in some respects. >> it changes it, justice scalia. the distinction between the trespass and fourth amendment protection for the opened fuel stock trading and in that case it was absolutely no doubt the police have committed a trust pass under a local mall. they entered, they ignored the trespassing times and this court held that the interest protected by the trespass law are distinct from those predicted by the -- >> but the rationale of the case was not an unreasonable. >> the rational is the there was no search, justice scalia the rationale is the open fields are not among the things that are part of it by the fourth amendment and the court was very specifically focused on the distinction between the trespass law and fourth amendment. >> you think there would also not be a search if you put a gps device on all of our cars, monitored our movements for a month you think you are entitled to do that under your theory? the justices of this court? >> yes. [laughter] under our fury and under this court's cases the justices of this court w

if you look at the supreme court express he will put into judges now that agree with scalia, thomas, looking at actually for the first time absolutely entertaining the idea of making birth control illegal in america. >> rick santorum has been very open in the past, as you saw in that, in the past, in october about his feeling that birth control is wrong, that it is -- that it makes for the wrong kind of society and that he also believes that states have the right to ban it. now he's being taken more seriously, he said he doesn't think states should ban it. mitt romney saying he would support a personhood amendment would allow a state like mississippi to ban abortion, mitt romney says that he also doesn't think that states should do that. what do you make of the candidates parsing the could and should of this issue? >> i think you can't trust them. in fact it's interesting because you look at mitt romney in particular, it wasn't that long ago he was asking for planned parenthood's endorsement when he was running in massachusetts, when he was politically ex-paid. he wants to defund pla

justice scalia said, this is like trespassing.ticking this gps on the car is like trespassing on someone's property. justice ilito said we all have a reasonable expectation of privacy in our cars and in order to honor that reasonable expectation of privacy, you need to get a warrant. and so that's the division. we can be sure that they'll be returning to this subject again. >> did you just say that two of the conservative justices disagreed on this reasoning? >> yes. very unusual in that respect. justice scalia was with the other conservatives and justiaa three other lil liberals. ginsburg, b richlt ier and kagan. >> it says in certain issues, there are not the intense political disagreements that we see in cases like citizens united or abortion or affirmative action. here in new technology, they'll really all are feeling their way. they're trying to figure out what it means. this is come up in file sharing on the internet. how does that affect copyright. those kinds of issues, gps, they tend not to have the intense political divi

to say with modern technology, the fourth amendment still applies and in the turn of a phrase of scalia it applies today with the same meaning and intention that the framers intended for its reply when they wrote it in 1789. >>shepard: does this change anything else about the way surveillance could take place? >>judge napolitano: probably hundreds of cases in the country awaiting the outcome of this, where police used g.p.s. devices without getting a warrant. they at least tried to get a warrant. they violated the terms of it and all of the cases depending on the facts but to the extent the police did what happened there will go for the defendant. maybe other evidence of the defendant's guilt buttest obtained by g.p.s. cannot be admitted. >>shepard: i am sure it has happened but i don't recall any unanimous decisions by the supreme court recently. >>judge napolitano: this court once in a while does come down with a unanimous decision. the decision last week about whether religious objections were prohibited from using a religious test when they hire people to work was also unanimous. wh