scalia comes on. scalia is far to the right of her. she's not happy with the way brin is pushing her to the left budgets are been that happy with the way scalia wants you to go more to the right. i think she got a very countable home there and she very much aligned with the late conservative lewis powell, who was also much more of a centrist conservative. >> host: do lawyers tailor their cases -- did they tell him to sandra day o'connor and now do they tailor them to anthony kennedy? >> guest: completely. this is the vote to get. his is deathly the vote to get. he wants it to me i think that's way overstated. but face it, he is the critical swing vote, and on things like affirmative action, on abortion, on same-sex marriage. he has been the author of the leading key opinion on the rights of gay men and lesbians, and he will probably hold the key to whether this supreme court now takes up same-sex marriage and how this court rules. and lawyers would tell you directly, it's no secret that there try to figure out what does anthony kennedy

scalia will continue and losing side of gay-rights, and in upcoming years scalia could bring about more financing etc.. this book came out in 2009. >> guest: it still stands up. that is true. >> good afternoon. my question is in terms of political rivals can you give examples of appointees to the supreme court that were potential political rivals and were appointed -- to kind of get them out of the way or a second part? had been any justices that have been impeached over the years? >> the first one, we had in some ways there was a question of whether president eisenhower put earl warren on the courts to get rid of a potential rival. that has happened. for our current crew i had to say i can't imagine the president thinking i'd better elevate that lower-court judge. the caller is thinking of a different era when we had more politicians on the court so a president would think about a political potential political flow at the supreme court. it has not happened at all really in our time. when president clinton was thinking of a big public figure in george mitchell, he wasn't thinking of let

justice scalia so this is over.the lower court said yeah i believe we will rule that windsor takes it much further for same-sex marriage nationwide. >> host: joan biskupic is art guess. if you can't get through to the phone lines will put the numbers up and you can get through on social media. he can send an e-mail to booktv at c-span.org and finally make a comment on our facebook page facebook facebook.com/booktv on callers thank you for your patience. we will be right with you. don't hang up but i want to start with this e-mail because you talk a lot about the 5-4 decision. this is from allen steinberg. mr. steinberg e-mails and i'm nervous about 5-four decisions decisions. has anybody responsible parties suggested a decision should require a supermajority say 6-3? guesto justices don't like 5-4 decisions either but if you are the majority you will take we can get. they don't like to appear so divided or polarize which they are. they brag about their 9-0 decision. they are unanimous in the wants of art is controve

i think that's justice scalia's question. i'm not quite sure you've answered it. >> the reason to remand is because the lower court hasn't addressed any question of remedy. so in the first instance, you should send it back for full -- >> but north carolina has a rule, i thought, that if you violate the fourth amendment, that's it. we don't have a good faith exception. >> that will be our position on remand, justice ginsburg. >> isn't that what the north carolina law is now? so it would be futile to send it back for them to answer the good faith exception since they have none. >> it wouldn't be futile, justice ginsburg. i think the analogy that i gave earlier about chapman is more or less on point. the court has held if the constitution is violated that the defendant in criminal case doesn't get a remedy unless he satisfied that test. now, all the time in criminal cases you would decide the constitutional issue and then send it back for remedy analysis if the lower court hadn't addressed it -- >> that's because they would be a

scalia, roberts, alito and thomas. if they wanted to hear one of these cases today if they wanted the chance to overturn one of those pro-gay marriage cases from the lower courts, those four justices had enough votes to take the case to do it. the anti-gay marriage side could have taken one of those cases. why didn't they? it's a consequential decision. instead of 19 states and the district of columbia recognizing gay marriage, which was true before the open of business today, by this time next week it's probably going to be 30 states recognizing gay marriage. that would not have happened had they taken up one of these cases an appeal today. why didn't they take up one of these cases? it was within their power to do it. the obvious answer is they thought if the court did take up another anti-gay marriage cause, their side would lose again. a more machiavellian motive was suggested. they wanted to keep their options open. they may not be able to win one of these cases today, but if the make-up of the cort changes in the

that was the case justice scalia wrote. it said what it really recognizes is an individual's to be in the home. actually what the second amendment was saying was less individual and more about society. it was more about militias. >> let's talk about it. oh well regulated militia being necessary to the security of the framework. out for the framers that was really important. those militias were at the heart policy. every adult white male was in the militia for their entire adult life. they were required by law to own a gun and keep the military weapon at home. was the constitution debated, they thought those were really important as a bulwark against totalitarianism. they were worried the new central federal government was going to be like that. they wanted to protect those. that was the motivating force. >> being necessary for the security of a free state and the right of the people to keep and bear arms shall not be infringed. >> live from pier three in san shall not be infringed. >> bear arms principally had a military me

it was written by justice scalia.t struck down a law that made it hard to have a handgun in your home. basically close to a ban. justice scalia said he was only going to follow original intent. this was his idea, that the only legitimate way to understand the constitution was to ask what it meant at the time to the framers, to people at the time. scalia says this opinion was the vindication of originalism. i went back and looked at the actual records of the debate over the second amendment, and it told a surprising and different story. you can look at james madison's notes from the constitutional convention. the records of the ratification convention with a few exceptions or the debate at the u.s. house of representatives on the floor, and there is not a word about having a gun for self-protection or hunting, all the things we think about. it was all this question about the militia. madison's original proposal had a conscientious objector clause. it said if you had religious scruples about bearing arms you don't have

i think that's justice scalia's question. not quite sure you've answered it. >> the reason to remand is because the lower court hasn't addressed any question of remedy. so in the first instance, you should send it back to the lower court for a full adversarial briefing. >> but north carolina has a rule, i thought, that if you violate the fourth amendment, that's it. we don't have a good faith exception. >> that will be our position on remand, justice ginsburg. the state may try to persuade the court of something else. >> isn't that what the north carolina law is now? so it would be futile to send it back for them to answer the good faith exception since they have none. >> it wouldn't be futile, justice ginsburg. i think the analogy that i gave earlier about chapman is more or less on point. the court has held if the constitution is violated that the defendant in criminal case doesn't get a remedy unless he satisfies that test. now, all the time in criminal cases you would decide the constitutional issue and then send it back

scalia -- justice scalia and i'd like to reserve my time. >> thank you. mr. montgomery. >> mr. chief justice and may it please the court. the fourth amendment prohibits unreasonable searches and seizures but it does not require police officers be perfect. it calls the touchdown of the fourth mend is reasonableness all that is required is that a police officer has a reasonable view of the facts and applies those facts to a reasonable understanding of the law. >> when will we ever get a right understanding of the law meaning the north carolina supreme court decision still hasn't told me whether it's one or two and an ex-police officer who wants to stop someone won't either. he may be bound by the appellate court decision but that won't help clarify the state of the love. isn't what you are doing to read criminal law unclear? it's one thing to say that you want to not subject officers to civil liability. it's another to say you want to make the law clearing a criminal prosecution. >> your honor in north carolina controlling precedent does come from the intervening court of appeals

it was written by justice anthony scalia. it struck down a law in washington d.c.assed by the city council there that made it very very hard to have a handgun in your home basically close to a ban. and justiceally acid he was only going to be follow -- scalia said he would be following the intent. the only legitimate way to understand the constitution any ofness provisions is to ask what it meant at the time to the framers, to the people in powdered wigs. he said it was the vindication of his theory of originalism. i went back and looked at the original records of the debate over the second amendment and it interestingly told a very surprisingly different story. you can look at jail madison's notes at the constitution convention. the records of the rather know case conventions from all the different states with a few exceptions, were the debate in the u.s. house of representatives on the floor where they actually wrote and marked up the second amendment. there's not a word about having a gun for self protection or hunting. all the things we think about was all abou

scalia's opinion here is quite strong. "congress shall make no law abridging the freedom of speech" it is a perfectly general proposition under these circumstances. it is not identify who is the speaker. the question is, corporations are artificial beings and is subjected to regulations. but there are two powerful things that you have to remember. the first is at the creation of the corporation is done by the state, not the federal government. why is it that the federal government can regulate corporate speech in a particular way? when it is the states that have the power over incorporation. the second is that the federal government may or may not be something but they may not do on certain activities -- do uncertain activities. they cannot say that you can use highways that you have to waive your right against search and seizure. i brought a book called "bargain with the state" which has nauseating detail on all of these interpretations. asking people to suppress the right to speak because they have limited liability agai

does scalia do it? does scalia complain about it? flap flap. >> he does complain about it. >> stephen: does he do it, anyway? >> he has done it. >> stephen: ah! thank you so much. (applause) professor allison orr larsen! we'll be right back! (door bell rings) trick or treat! mmm! thank you! mmm! mmm! t-mobile's network has more data capacity than verizon or at&t. it's a network designed differently. a network designed data strong. fatthe fire of 1880 g at the baccouldn't stop us. nor did prohibition in the 1920's. or exile from our home country in the 60's. the bacardi family didn't just survive, we thrived. because true passion can't be tamed. break the ice, with breath freshening cooling crystals. ice breakers. >> stephen: welcome back. (cheers and applause) folks, thanks so much for your support. i need it tonight. this isn't going to be siz easeo say but i want to issue a rare correction. (laughter) last week, i broke the story that you would be dead by now. it turns out you are not and, for that, i apologize. (laughter) because,

scalia's prediction was right. the court so far have unanimously ruled the constitution prohibits states from treating gays and lesbians differently than heterosexual couples. monday's order does not legalize same-sex marriage nationwide, but instead, leaves the issue for lower courts to decide. now, that would change if other courts are now considering this issue, say, in louisiana or ohio, would reach a different conclusion. then the supreme court ould really have no choice but to step in and resolve the conflict and resolve once and for all if same-sex marriage is legal across america. jan crawford, cbs, the supreme court. >>> there is the potential for flooding in the southwest this morning. the remnants of hurricane simon moving north will produce strong thunderstorms through tomorrow. flash flooding is possible. and some areas will get more than an inch of rain in a very short period of time. >>> well coming up on the "morning news," you might think twice about putting your college tuition payment on your cre

does scalia do it? does scalia complain about it? flap flap. >> he does complain about it. >> stephen: does he do it, anyway? >> he has done it. >> stephen: ah! thank you so much. (applause) professor allison orr larsen! we'll be right back! hmm. trade in your old iphone and get a new iphone free at verizon. did you say something, paul? huh? no. can i route our trip? i love our trips. oh, me too. but no i'm good i know where i'm headed. how about music? nah i don't really feel like- ♪ just the two of us ♪ we can make it if we-- what a fun drive. we always have so much fun. remember that one time we- okay. sure you loved your old iphone. but you'll love your free new iphone you trade it for even more. ♪ rock and roll music ♪ ♪ decay. it's the opposite of evolution. the absence of improvement. and the enemy of perfection. which is why you can never stop moving forward. never stop inventing. introducing the mercedes-benz gla. a breakthrough in design, aerodynamics and engineering. because the only way to triumph over decay... is to leav

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does scalia do it? does scalia complain about it? flap flap. >> he does complain about it. >> stephen: does he do it, anyway? >> he has done it. >> stephen: ah! thank you so much. (applause) professor allison orr larsen! we'll be right back! this is a pip. it's part of a hershey's bar. we break it. we bite it. we sneak it. we smoosh it. we savor it. we love it. hershey's is mine, yours, our chocolate. to help entertain some friends at the beach. before earning 1% cash back everywhere, every time. and 2% back at the grocery store. even before he got 3% back on gas. all with no hoops to jump through. rafael was inspired to use his bankamericard cash rewards credit card to spend a night watching the stars, under the stars. that's the beauty of rewarding connections. apply online or at a bank of america near you. most people don't know how to choose a new dentist. that's where we come in. we've helped over 8 million people find the right dentist, and we can do the same for you. call 1-800-dentist today. ♪ what does an apron have to do wi

think brennan and scalia were very good friends. they were very charming people but they didn't convince themselves all that often. >> i wouldn't ask you what case they might have convinced each other on. >> i don't have one readily in mind. >> so i want to go back to your nomination. so were you surprised to be nominated for the supreme court? >> well, yes. ut after the -- after the -- might explain the time frame was quite short between doug lass' resignation and the nomination and during that period, the newspapers had a list of people that they thought were likely nominees and i was surprised to find myself mentioned publically as a possible nominee and then i was even more surprised, of course, when he made the decision. >> i think, yeah, it was really -- it was a remarkable decision by president ford because it was a time in which the nation was still suffering from water gate. and there was a real crisis and belief in the rule of law. and for him to make -- there were a lot of people who were being pushed forward for ifferent

scalia's prediction was right. appeals court so far have unanimously ruled the constitution prohibits states from treating gays and lesbians differently than head sexual couples. today's order does not legalize same-sex marriage nationwide but instead leads the issue for lower courts to decide. now, that would change if other lower courts that are now considering this issue, say in louisiana and ohio, were to reach a different conclusion. then the supreme court really would have no choice but to step in and resolve that conflict and decide, scott, once and for all, if same-sex marriage is legal across america. >> pelley: jan crawford outside the u.s. supreme court. jan, thank you. federa prosecutors say a 19-year-old from illinois who hoped to join the isis terrorist group in syria was arrested over the weekend while trying to fly out of chicago's o'hare airport. mohammed hamza khan, a u.s. citizen, was in court today to hear charges of attempting to provide material support to a foreign terrorist group. investigat

scalia's a little bit bullish attitude does come out in oral arguments. i don't think he would change that. knowing his character, which is a little bit of a bully, with all due respect, is important to the american people. we should know that he is a little bit of a bully. we should know better than we do that justice thomas never speaks. >> we know he is a bully. as you said, it's final. he is there. it's alive. >> general fear is part of this. justice breyer said this, fear of the unknown. o'connor said this, too. we don't know what's going to happen. we have done it this way for a long time. let's not change anything. >> has to be cultural. >> this is an institution we need to protect. we don't want to make changes. fear of loss of privacy is clearly very important to justices. so there's certainly just overall fear that is part of a lot of these. >> they have to look at the deeply unpopular nature of the other branchs and think that maybe ignorance of what they do is better. >> what is their approval rating? >> higher. >> it's higher. >> that's what'

justice antonin scalia also in attendance. he is roman catholic. the traditional mass at saint matthews cathedral. we are live outside the cathedral. al from texas is next, good morning. caller: yes, i would like to talk about no labels. it is getting to where everybody walks up and, it is either democrat or republican, not knowing the candidates. i've seen this numerous times in my own local area. where do i put the d or r? d.ee more about the i think it is time we get to the no labels, to where we can -- they know the candidates instead of the party. this president wouldn't be here if it wouldn't have been for that. the: thanks very much for call. scott from belmont, michigan, good morning. caller: how are you? host: not too bad, how are you? . you had a guy calling -- caller: if you had a guy calling from georgia. there was the constitutional restaurant -- is that right? host: your point is? caller: the 16 republican congresspeople -- they said they were going to run the government like the taliban, they were going to do and insurgents against t

scalia solved the problem about the trespass. lot of cars have data. what if we collected the data from a car manufacture that was getting a feed about where that car was going? that would, i think, raise similar issues to what we have with the meta data. my guess is that there will be a change in the third party doctrine. it won't be overruled. i think pen registers will continue to be pen registers but i think there might be limits or recasting. largely because these are older doctrines and there's a lot of unattended consequences from simply repealing the doctrine all together. >> i would hope that whatever recalibration of the rule takes place we don't end up in the position where the line is drawn between surveillance that you can do easily and surveillance that's expensive to do. >> right. i agree. >> yes. >> hi, i'm rita from national security council with the constitution project here in d.c. my question i'm happy to hear from other panel lists from oth panelists but for bob in particular. i was hoping you could respond with the government's vi

sympathies for religious exemptions ever since congress overturned a something writtenbly justice is scalia. i think there may be sympathy for this inmate and his beard and he may get support. >> the difference is that he's in con fivement. there have been accommodation rules all along in the middle with yarmulkes and turbines and other displays of non-uniform dress, the use of peyote, and other types of law. but it's his standar status as a prison. >> in cases like peyo it te, the supreme court ruled there was not an exemption. and it was created, and initially the supreme court said you don't have a constitutional right. congress came back and amended the statute. what you have in this statut statutory situation, they created the free exercise of religious in prison institutions. what i find intriguing about it is that the court in the hobby lobby case last term indicated that they would interpret the statute to create a high hurdle on any government from imposing any kind of restriction on someone's ability to practice their religion, and the key in this case would be was that just an ab

do you think you stand a chance with john roberts, clarence thomas, antonin scalia, samuel alito andennedy, all of whom basically believe that it's the politicians, the state legislature, who should resolve these issues? >> i have optimism that this will go through. in my own state, you know, we got dismissed from the trial court. the judge said it wasn't in his jurisdiction to, you know, follow through with the case. we appealed. and the court of appeals turned it around and said, no. this is -- you know, the court has every right to follow through. this is in the court's power. the whole theory about having lawsuits and legal actions in, you know, throughout the states, and there are international cases as well, is that we hope it'll be what we call a domino effect. you know, a win here will hopefully influence allxae'g]%9 across the states. because really, it just takes one brave judge to say, yes, >> so how did you feel when the court of appeals said, gave you a second opinion? >> you know, it was the last day of high school for me. and senior year, so huge celebration. and also

i was amazed when justice scalia said that the voting rights act, this part of it, amounted to a raciallement. he spoke as though there's no racial preblg prej -- racial prejudice in america. baloney. go out in america, you'll find plenty of example of racial pre prejudice. i'm hoping everybody will vote this fall and help us reverse who is a terrible mistake. >> how do we go about reversing what is a terrible mistake? it seem to me that what the supreme court careful basically said -- i should say on this and other legislation, what i see the supreme court saying repeatedly is that if congress wants to fix this, let them fix it. here's how we interpret it. this could be addressed by the house and the senate, as i intimated earlier at the start of this conversation. how would we go about fixing what's already been done? >> i think there are many member of congress who don't want to fix this. they're very happy with what the supreme court did because they feel it's going to help their own political base. but if we see that people will fight even under this to get out and vote, turn out h

scalia solved the problem about the trespass. lot of cars have data.hat if we collected the data from a car manufacture that was getting a feed about where that car was going? that would, i think, raise similar issues to what we have with the meta data. my guess is that there will be a change in the third party doctrine. it won't be overruled. i think pen registers will continue to be pen registers but i think there might be limits or recasting. largely because these are older doctrines and there's a lot of unattended consequences from simply repealing the doctrine all together. >> i would hope that whatever recalibration of the rule takes place we don't end up in the position where the line is drawn between surveillance that you can do easily and surveillance that's expensive to do. >> right. i agree. >> yes. >> hi, i'm rita from national security council with the constitution project here in d.c. my question i'm happy to hear from other panel lists from oth panelists but for bob in particular. i was hoping you could respond with the government's view

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

my guest toes john scalia staying with me. -- john scalia staying with me.re generating a lot of discussion about what the next big thing is. some of these apps are very interesting for old fogies like me. teenagers logged on to your site? >> teenagers are always looking for the next cool thing. they are very much into mobile apps in particular but also technology more so today. they're always looking to find out and introduce things to their friends. they want to feel cool and they want to find the next instagram before everyone else. >> here are some of the apps that are being uploaded -- there is one called morning person where you can get a wake-up call from a real person. that is the purpose of this app. there is another app called e-thin which sounds more ridiculous than yo which allows you to send a message to a guy named ethan and he gives you opinions about anything and everything. they are cool apps but are they cool companies? >> this is a great idea and ryan, congratulations for putting this together and getting some big names to have confidence

scalia solved the problem about the trespass. a lot of cars have data. and if we collected the data from a car manufacturer that was getting a feed about where that car was going. that would, i think, raise similar issues to what we have with the metadata. my guess is that there will be a change in the third party doctrine. it won't be overruled. i think pen registers will continue to be pen registers but i think there might be limits or recasting. largely because these are older doctrines and there's a lot of unintended consequences from simply repealing the doctrine altogether. >> i would hope that whatever re-calibration of the rule takes place we don't end up in the position where the line is drawn between surveillance that you can do easily and surveillance that's expensive to do. >> right. i agree. >> yes. >> i'm rita simian. i'm national security policy counselor with the constitution project here in d.c. my question that i'm happy to hear from other panelists, as well, but it's for bob in particular is, i was hoping you could respond with the gov

i mean, that goes right against any sort of fair meaning as justice scalia would say, because that's who we're quoting today, it's a fair reading of the statute. you don't interpret it in a vacuum, don't look at "the new york times", but you need to say how does this reading of the statute affect the rest of the working of the statute? and, you know, lastly, with regard to harry reid's midnight editing session, again, i don't think any of that matters for my textual interpretation of the statute. the statute as written with a state, i know it's defined, but it's also included in 1311 so it works by reference, you know, the reason why some staffer in harry reid's office late at night perhaps after a beer looked at the statute and said, oh my gosh, in this provision right next door we say established by the state. i'm a line editor. it should be consistent within this one thing. i don't know. i don't know if an interview with that person would matter. that's not what was passed is that individual staffer's intent. you look at the statute and you walk through it the way that, you know,

scalia writing for justices thomas and alito and himself, that it doesn't matter. differential burden is born. and go back to your point about the wisconsin judge, wisconsin judge saying i'm free to decide this question and it does, that is a sub group burden does in fact matter. does it matter? should we take into account that there are groups that will be differentially effected by this? and that those are groups that are connected to the voting rights act. or if we go back to sort of some payment about history, should that matter? >> i think that in a long opinion, i think he found that to be relevant with regard to the stat statutory violation of the voting rights act. and he found that it had a discriminatory act on people that were poor and they were more of the african-americans and latinos. but i'm not quite sure what the significance of that rational was. i'm sure that african-americans and latinos are able go to the department of motor vehicles, take time from their day, and figure out thousand get a free photo id. it is not that difficult to do. i find t

>> the most aggressive justices are the ones we tend to think of as more conservative -- justice scalia, chief justice roberts -- all there he skeptical of the claims in this case. justice kennedy was a little more in the middle and probably asked tougher questions of the lawyer representing integrity, which is the staffing company that staff these amazon warehouses. >> the supreme court is a branch of the federal government and officials are obviously concerned about security. how's this different from a courthouse ora airport? >> that's a great point will stop the workers acknowledge they had to get the court to distinguish between a security check for the general safety of a community, preventing people carrying weapons or bombs versus screening that is ugly for the companies in a fit to her -- to prevent theft and help the bottom line of that company. >> speaking of the workforce, i guess in this case, the worker is claiming what amazon is doing is a are taking away their time. there are off the clock time. >> exactly. workers will clock out and pass through the check and the point