justice scalia: really? mr. whalen: under this court's decisions, that's essentially right. there has been under the jurisprudence with regard to allstate insurance and alaska packers and so forth that there's a minimal due process requirement to decline to apply another state's substantive law. justice scalia: we can say the only marriages we acknowledge in new york are marriages concluded in new york, is that possible? mr. whalen: i'm sorry? i don't 3 justice scalia: new york can say the only marriages we acknowledge in new york are those marriages that have been made under the laws of new york. mr. whalen: yes, your honor. justice scalia: really? mr. whalen: if i'm understanding your if i'm understanding your question correctly. justice roberts: what case is that? what case would you cite to support that proposition? mr. whalen: i'm not sure if i understood the question correctly, your honor. justice breyer: he said i mean i already have several cases to read. i might as well get another one. justice breyer:

justice scalia: ms. bonauto, i'm concerned about the wisdom of this court imposing through the constitution a requirement of action which is unpalatable to many of our citizens for religious reasons. they are not likely to change their view about what marriage consists of. and were the states to adopt it by law, they could make exceptions to what is required for same-sex marriage, who has to honor it and so forth. but once it's made a matter of constitutional law, those exceptions for example, is it is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if indeed this court holds that they have a constitutional right to marry? is it conceivable that that would be allowed? ms. bonauto: your honor, of course the constitution will continue to apply, and right to this day, no clergy is forced to marry any couple that they don't want to marry. we have those protections. justice scalia: but right to this day, we have never held that there is a constitu

justice scalia: yes. mr. smith: the only thing that is done using not express consideration of cost, but indirectly basing the regulations and what the top 12% are doing, is the minimums. the minimums i been altered depending on what categories you establish. that is the way they do for all the sources regulated. justice kagan: just to clarify. you categories one way, the minimums are down here, you categorize another, the minimums are up there. it can make a huge difference in terms of minimums. mr. smith right. : there is a notice and comment process. they put out proposed categories. they tell them -- they get comments and make different categories. justice alito: how can we tell the degree to which costs without knowing the criteria for creating subcategories? mr. smith: it is in the statute. justice alito: no, the 12% came into play after you created the category. mr. smith: right. justice alito: how do i know they create the subcategories? mr. smith: you can see it in a notice of proposed rulemaking. wh

limits in some places are not anticorruption laws because this court, justice kennedy and robert scalia believes only one statement is corrupt and that is quick for a quote fairly explicit library.

today you might think scalia is in dissent, big deal. but fast-forward years later and you get a majority of the court accepting the same reasoning, writing off the virtual absence of african americans and other minorities among construction contractors in richmond. this is a quote. not necessarily reflecting discrimination, but may have reflected past societal discrimination in education and economic opportunities, as well as black-and-white career and entrepreneurial choice here it. blacks may be disparate -- disproportionately attracted to industries other than construction. this is a good example of exogenous difference. blacks are born or raised with a set of different preferences. the key point here is that the increasing judicial turned toward narrow understanding of impartiality is grounded in judicial acceptance of a very controversial set of assumptions about the nature and source of difference. those two things have gone hand-in-hand. lawyers knew from the beginning that this was going to be a problem. the earliest cases raise

you got justice scalia, you can read him pretty easily.he guys in the middle are much harder to note. mark: the fact of the justices double will vote against further expansion of rights for gay lesbians to get married, the fact that all of them are conservative is representative of the divide in america. too much in the media coverage today and of the arguments today is rooting for the court to overturn this. there are millions of americans on that side, too. i think the simplest thing to look at is justice kennedy's stance on these issues. he is not afraid to say public opinion and civil rights and taking things out of the realm of politics is perfectly fine. i think it is 5-4. i think it could be 6-3 in favor of expansion. john: i agree with you. justice kennedy would have a hard time intellectually squaring his past decisions if you were to deviate now. mark: jeb bush corralled in florida some of his biggest donors. the program included so well received and well reviewed remarks from his mexican born wife. today, he left the continental

this is justice scalia and horn's lawyer, scalia saying i thought that what the constitution required taking was just compensation not a reasonable nexus to a good policy. am i wrong on that? mr. mcconnell you are not wrong about that. and scalia says, i didn't think so. so that gives you an indication. that's it for the panel. stay tuned to hear what secret service may be asking after last week's security breach. >>> finally tonight, joe is briefing members of congress on recent security breaches. one late night show took a stab at what may be happening behind secret service talking about white house security. >> number 7. why doesn't the president just move to a safer neighborhood? number 5: have we tried a fence around the fence? number four, sorry i'm late. slow moving prostitute. number 3: you don't work here. how did you get in? number 2: one more screwup and you are all going back to groping air travelers. [ laughter ] and number one thing overheard at the latest secret service meeting who wants to ride the gyro copter. >> oh, dear. thanks for inviting us into your home tonight

the five to four court of appeals justice scalia wrote the opinions and justice scalia talked about theevil class actions and said they terrorize business and forced to settle the claims. they cannot bring a class-action. not even a class-action arbitration. justice breyer in the dissent said the reason we need class-action into situations like this we are a large number of people and we each lose a small amount of money. no one is going to sue would go to arbitration so why does it matter to all of us? arbitration is increasingly ubiquitous. they are found on employment contracts and consumer contracts and even medical contracts. not that long ago ... he and my doctor for the first time in a big stack of papers to fill out and in the middle is a form i was asked to sign with any dispute of the doctor and the treatment i couldn't sue the doctor i would have to go to arbitration. i asked the receptionist if the doctor would still see me she said she didn't know. nobody ever asked her that question before. that dr. didn't see me but i know many physicians will not see patients unless they

this is justice scalia and horn's lawyer, scalia saying i thought that what the constitution requiredg was just compensation not a reasonable nexus to a good policy. am i wrong on that? mr. mcconnell you are not wrong about that. and scalia says, i didn't think so. so that gives you an indication. that's it for the panel. stay tuned to hear what secret service may be asking after last week's security breach. nsurance company says they'll only pay three-quarters of what it takes to replace it. what are you supposed to do, drive three-quarters of a car? now if you had liberty mutual new car replacement, you'd get your whole car back. i guess they don't want you driving around on three wheels. smart. with liberty mutual new car replacement, we'll replace the full value of your car. see car insurance in a whole new light. liberty mutual insurance. every truck can tow a boat. every truck can climb a hill. every truck can haul a trailer. but not everyone can say they're the fastest-growing truck brand in america. guts. glory. ram. >>> finally tonight, joe is briefing members of congress on

justice scalia: minimum standards apply, right? the agency could have discretion as to whether to lift the standards further, but the minimums apply, right? general lindstrom: that is the epa position. if i could reserve time for my rebuttal. justice roberts: thank you. mr. brownell: mr. chief justice, i would like to make three points to support my colleagues or commit. to begin, power plants are the most recommended source category under the clean act both before 1990 and after the 1990 amendment. it's not only title for acid the positive -- acid deposition program, but a visibility, best available retrofit technology, pollution transport grants targeted at power plants, and a variety of control programs, both quality and air quality. justice kagan: i would think that cuts the other way, that every other significant industry in the u.s. is subject to this program except or electric power plants. -- except for electric power plants. mr. brownell: what it shows is that for other industries, epa instigated in 2010 that for all other

yes, katie couric and justice antonin scalia. some say this is what it is all about.ing journalists and policymakers together. [indiscernible] ♪ announcer: you are watching live coverage inside the ballroom. 7:50 is when the pre-dinner program is due to begin. it often runs late, as people go through the x-ray detectors to get into the dinner. there is a lot of criticism about this dinner, the coziness between the press and the politicians since it has become since the 1980's. patrick gavin is the director of a new documentary looking at the white house correspondents dinner, he talks about some of his criticisms of the white house correspondents dinner. patrick gavin: i started off with less of a critical eye then i ended off with. i started off by saying what is this week, why do celebrities come? you know, sort of just a snapshot. isn't this interesting? and then, as i started interviewing people and listening to what this week was about, you start to realize the criteria were not holding up. people said it was about access. people say it is about white house corre

to get back to justice scalia's question, is there any other provision where legislature means anything other than the conventional meaning? how about applying for a constitutional convention? calling on the president to send in troops to suppress domestic violence. creating a new state out of part of the state of arizona for instance. does it mean anything other than the conventional meaning of legislature? >> i don't know the answer to that question. >> it might? you think it might? >> well, this court has never said that it doesn't. it's never said that it does. it has focused a lot of attention on three particular -- in the constitution. the article 5 ratification power, the former article 1 section 3 power to elect. senators in the legislative body, and the article 1 section 4 power to make the laws in the provision that's at issue here. and i think it's particularly important. i want to get to the language of smiley, which my friend embraces. >> i'd like you to because as i read those two cases they don't help you very much. i mean, hildebrand is talking about a particular statute

john: justice alito, justice scalia, justice thomas -- we know how they will vote.you have a sense of they are resigned to the notion they are about to lose? greg: there was that sense, i would say so. one other point as i reheard those comments, one thing you did not hear was moral disapproval. justice alito was talking that it was going on since ancient greece. that was a different tone to the argument. john: greg, thank you for being with us. next, presidential announcement news. we will be right back. ♪ mark: super fun weekend at bernie's this weekend. this thursday, senator bernie sanders will announce that he is running for president and will run as a democrat. expect a short statement this thursday. next couple of weeks, the kickoff in vermont. john: we have a trifecta of programming notes. tomorrow, brian grazer joins us. on thursday, time for the minister of silly walks, monty python's john cleese. and then a conversation with larry flynt. mark: until then, sayonara. ♪ pimm: hello, i am pimm fox. this is what i am "taking stock" of this tuesday, april 28, 2

in other words, justice scalia knew what was coming.fter that decision in 2003 massachusetts recognized a right to gay marriage, and other -- ever since then, the movement is moving state to state. it is the same basic argument. marriage is a matter of liberty. the 14th amendment says states must give people equal protection under the laws spirit he put together liberty and equality and the same-sex couples are saying, why not us? why can we marry? that is basically where we are today to that is the question they are posing to the supreme court. host: who is the one to watch as far as justices themselves? you mentioned anthony kennedy. guest: yes, it is interesting. he was a reagan appointee and relatively conservative. in every important game race -- gay-rights case, he has been the one who has written the opinion. he has got a very strong view about protecting liberty and privacy. he has also made the argument that you cannot justice from against people because you do not like them. he has not ruled in favor of gay marriage yet it wha

and justice scalia, but also about religious exemptions if we allow same-sex marriage, nationwide would ministers who opposed it have to marry same sex-coupleses. the key person is justice kennedy, he is the swing vote he did not play his cards he ask questions on both sides of the fence so we will be waiting to ski what he decides. coming up the latest from baltimore, where residents are cleaning up the day after ray t yos, next. riots. riots. riot "ryeout ." out a >> "faultlines". >> what do we want? >> al jazeera america's hard-hitting... >> today the will be arrested. >> ground-breaking... >> they're firing canisters of gas at us. >> emmy award-winning, investigative series. >> we have to get out of here. >> "faultlines: made in bangladesh". monday, 10:00 eastern. only on al jazeera america. >> now available, the new al jazeea america mobile news app. get our exclusive in depth, reporting when you want it. a global perspective wherever you are. the major headlines in context. mashable says... you'll never miss the latest news >> they will continue looking for survivors... >> the pot

mike, does justice scalia have a point?e provision of these drugs besides the point or exactly the point? >> sort of in between. if you think something is wrong, like the death penalty is by any means, try to get it abolished. it's not a terrible point that i won't get in too much depth and you probably know this but the only reason they do a three drug cocktail animals are killed with a two drug cocktail but there's a paralyzing agent. without that the bodies thrashed around. some in executions say it's a safety thing. you don't want when they inject but probably doesn't disturb witnesses. there are so many complications with this that the opponents of the death penalty just want the whole thing banned based on the procedure. is that the way we're going to get the death penalty banned. any nation that banned the death penalty because there's not an efficient way to kill people? probably not. >> and now we're talking about going back to firing squads and gas chambers because in many ways annie lowry, those are maybe more hu

you write about justices kennedy and scalia.hey were born in the same year chosen by the same president, ronald reagan, live on the same street, served together on the supreme court, and on one issue how the supreme court separates gay citizens divides and defines the two like none other. >> yes, this has been very interesting. three major decisions favoring gay rights. each one of those, justice kennedy has written majority of the opinion. each one of those, justice scalia has written a fiery dissent. in, it really crystallizes the they the two of them look at the constitutional change. the real question is, what do you do about constitutional protections in a changing society? justice kennedy would say that the constitution and expands and it can recognize rights that we did not see before. and justice scalia says no, the constitution protects what is in the constitution. in, if we want to expand those rights to include other things, that has to be done through the democratic process. and so it is a real difference between the

but from a historical standpoint, justice scalia was careful talking about society, and justice alito talks about cultures if you read about the ancient peoples, they didn't have a government rule. they made it themselves and it was man and wife. >> there were certainly prior to marriages prior to the united states forming and we recognize that. but in this union in 1787 and affirmed the 14th amendment and our nation made a commitment to individual equality. >> i would like to hear the answer to the precise question you have been asked several times. this has been the law everywhere for thousands of year among people who were not dis discriminating against gay people. and suddenly you want nine people outside of the ballot box to require states, that don't want to do it to change what you have heard is change what marriage is to include gay people. why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage? that same question has been put in many many ways in the briefs on our subject, you received it in three or four di

justice antonin scalia says that's because of the abolitionist movement, putting pressure on the companies that manufacture drugs to stop making them available for executions. and that's what happened in this case. a drug company stopped providing two other sedatives, which forced oklahoma to use this alternative. or it could do, scott like utah recently did and bring back the firing squad. >> pelley: jan crawford at the supreme court. jan, thank you. now, have a look at this. >> yesterday december 7 1941 ... >> pelley: f.d.r. the day after pearl harbor asking congress to declare war on japan. today nearly three-quarters of a century later, the prime minister of japan stood in the very same spot and expressed condolences for america's war losses but shinzo abe stopped short of an outright apology. the death toll from saturday's catastrophic earthquake in nepal topped 5,200 today. more than 10,000 were hurt and the u.n. estimates that 2.8 million have lost their homes. we have two reports first seth doane in cat man due. >> reporter: frustration is mounting. clean water power and fuel are s

. >> maybe i'm just not understanding justice scalia's question, but for example there are many rabbis that will not conduct marriages between jews and non-jews. notwithstanding that we have a constitutional prohibition against religious discrimination. and those rabbis get all the powers and privileges of the state even if they have that rule. many many many rabbis won't do that. >> that's precisely -- >> congress shall make no law respecting the freedom of religion. which leaves this question open. >> i would just say that briefly -- >> do you agree that ministers will not have to conduct same-sex marriages? >> if they do not want to, that's correct. i believe that's firmly in the first amendment. i reserve my time, your honor. but in terms of the question of who decides, it is not about the court versus the state. it is about the individual making the choice to marry and whom to marry. >> thank you counsel. >> would you like to take a moment? >> take a moment. >> i will, thank you. >> actually, if the court is ready -- >> we're ready. >> that was rather refreshing, actually. >> mr.

>> justice antonin scalia, a very common opinion when he said legislation that goes back to 1937 that a time when central planning was considered a good idea by a lot of people. even democratic justices had questions about whether this was the right role for government in regulating a crop. he saw a real skepticism across the board as to whether this was the right way for the government to be regulating a program aired certainly, that was going across the spectrum of the court. some people were wondering rather -- whether or not they should be compensated for this given the fact they were benefiting from the higher market prices of the program. that would be a question dealt with later. mark: which crops are affected and what might a change in policy do? >> there are some crops affected by this. a reserve program specifically applies to raisins. reserve programs for crops like walnuts, cherries but again, these are just a few isolated examples almost vestigial examples of a policy whose time has passed. mark: when might we expect a decision? >> may be around june. i will tell you, if

justice scalia, who i don't always agree with, but who is always perceptive, and almost always right to the point, in his dissent in windsor really late it out every the principles of that decision are those that compel a decision in favor of marriage equality. charlie: adam, speak to that. adam: before the argument in the morning, when all we knew was justice kennedy's reasoning in the windsor decision, there was a lot of reason to think he was prepared to go all the way. he stopped short of saying so today. will he in june? i agree with david, very likely, yes. his question suggests he knows he's on the brink of a major transformation of american society and one which would be a ccomplished by court rulings and not democracy and that made him a little nervous. charlie: what more did you glean from watching this about the justices beyond kennedy? adam: both cases presented their cases good. they suggested, somehow banning same-sex marriage, it would make traditional marriage more secure. justices kagan, ginsburg, really went after him on that. not understanding whatever you might sa

and i know for a fact by studying him scalia thinks the same thing.are not the people to redefine a word. >> one of the things it's currently up to the states. currently, that's the way it's happening in this country. >> and that is the way it feels like the supreme court is leaning saying why should we impose this on this country when we can leave it up to the states and elected officials. in 36 states they've spoken. >> but you heard what alito said he said justices allowing same-sex couples to wed doesn't open the door that polygamous relationships be regarded in the same way. interesting question. >> and even though homosexual relationships have been condoned back to plato. however, polygamy goes back and there are plenty today, and so we think that that may be the next domino to fall in the definition of marriage. >> it's very very fascinating. especially to hear their own voices as they're discovering it and arguing about it. >> they're also by the way, trying to sway each other, the justices during the course of those arguments. the way they co

we are the champions of all scalia.ur sport, you get the opportunity to go on and play whoever wanted european league. we go to england, nervous. we are now playing a champion team of another league altogether and we have to play on their ground. there were like 18,000 people. we are playing the game there so everything is stacked against us. their season is underway, we are in preseason. i think there are 500 of our fans that we knew would be there. that game started and we just couldn't be turned around. we ended up beating them. are you planning to bring rugby to the u.s.? russell: that is something in my mind. there are a lot of rugby unions leaks -- leagues. there are defined periods of offense and defense. that idea i want to expand. i think it is a great idea to expand. if you were to take the top four teams from australia from the european competition and meet half way and play in vegas if americans are ever going to love this sport, they will not love it because of exhibition games or -- like the new zealand te

one another, partly because they are in the best position to appreciate them, so we asked antonin scaliawrite about ruth bader ginsburg. they are friends. they are not ideological allies and yet he writes about the role she plays within that set of justices to sharpen everyone's opinions, everyone's thinking and that is the kind of influence i think is really fascinating to watch. charlie: and what are you looking for in what they write? on the cover, elon musk. why elon musk?ka kanye west. nancy gibbs: kanye west, movie into fashion, but talking about design, how design will solve the world, how design will solve the problems and elon musk where design is been such a central part of all of his endeavors, a sort of speak a leg which was one another and have a respect for one another that transcends the individual feels that they operate in. charlie: and johnny who writes -- part of that world. nancy gibbs: part of that world and able to appreciate it. we also like it that they have dealt with one another and has a knowledge about some and that tells us something personal. taylor swift te

it's a guerrilla war with scalia saying quote and now you want to come before the court and say the drug0% sure. the reason it's not 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drug. oklahoma solicitor general told the justices that even the expert hired by the inmates con seats that the drug the state is now using renders a person unconscious in 60 to 90 seconds. but if that doesn't happen, justice kagan says the final drug administered with leave the prisoner with a feeling of burned while alive. suppose we're going to burn you at the stake but before we do we're going to use an anesthetic that will make you completely unknown. maybe you will feel it maybe you won't. and you think that would be okay? >> these people did not have the capability to shoot down the small aircraft that landed on the capitol lawn two weeks ago. this directly contradicts testimony from the head of the capitol police. the head of the faa says the vehicle was indistinguishable on radar from a flock of birds, a kite or a balloon. a florida postal worker upset with camp

if people want to pay for candidates to campaign to run to support them, they need to, as justice scalia says, have the backbone to do so publicly so everyone can know the system has not been rigged or bought by wealthy, well-heeled donors. all donors must be willing to provide information if they want to contribute directly to a candidate. they can give unlimited sums directly from a corporation or super pac that support the candidate, or give to nonprofits that will be able to, to a limited degree, engage in political activity to support a campaign. host: john in virginia, democratic color. caller: thank you for taking my call. we are sick and tired. the way the country is going the supreme court allows myself to contribute the same amount of money. i cannot challenge walmart or corporate america. the reality is we are selecting people. corporate america decides who is the president of the united states. it is a shame in the country that i love that we have no votes whatsoever. it is not an election anymore. it is whoever has the most money. host: sheila? guest: i think what the caller

people can't stop tweet being fellow supreme court justice antonin scalia and his statement about rbg rivals. scalia said of ginsburg she's almost always correct. >>> also taking over twitter is a transgender man. aidan dowelling tweeting hatch hatch mhguycontest to make him the first guy man to grace the cover of the "men's health" magazine. >>> and national high five day trending with over 23,000 tweets. you know i know you posted national sibling day. am i breaking rules by crossing over here? >> no. just make sure your lit -- >> high five. high five. >> economic to the light. >> do it again to make sure. high five. >> national high five they and high five to you too. >> see if i can get back in without falling over. i got five wheels under here for high five day. >> be careful. >> that was -- >> you don't want to high fall. >> no if i do, i do want it to be on live tv so we can make a meme out of it. >>> country music group lady antebellum's tour bus caught fire on the way to dallas texas, for the american country music awards. look at this. we'll talk about what happened. police

we asked scalia to write about ruth bader ginsberg. >> rose: they're friends. >> he writes about the role he plays within the set of justices to sharpen everyone's print and that's the kind of influence i think is fascinating to watch. >> rose: what are you looking for in what they write t why elon musk. >> here is -- who is known globally as this musical super star but who is increasingly movying into other fields particularly analysis. but the way kanye talks about design, design will save the world design is about solving problems and elon musk is somebody who design has been a central part of all his endeavors. they speak a language with one another and has respect that transcends the individual fields they operate in. >> rose: and johnny ives who writes about -- part of that world. >> part of that world and in a position to appreciate it. we like it if they have dealt with one another and have a kind of knowledge of one another that tells us something surprising. taylor swift wrote about, i think cooking with anna gotten's recipes i did not know she once worked in the whitehouse

justice scalia i think, was right in that dissent.at some day very soon americans in every single corner of this country, in towns big and small and in all 50 states are going to have the freedom to marry the person that they love. >> chad and jim, you have a busy day ahead of you. make sure you get some gatorade and wheaties in you. >> thank you michaela. >>> so we are following a whole lot of news today. let's get to it. >>> we've got 27 arrests, we should have probably close to 50 maybe 100 arrests. >> you guys we got to move back. >> the baltimore police department doesn't have the resources to do what's needed to be done here. >> there's a liquor store that was just lit on fire. >> all this violence and destruction i am really appalled. >> don't tear up the whole city. >> this city is on fire. >> we have control. we are responding to fire. we are responding to police. >> this is nuts. it's a war zone. >>> welcome to your "new day." alisyn and michaela are in new york. i'm coming to you live from baltimore where we're following br

justice scalia says that's because of the abolitionist movement putting pressure on the companies thatacture drugs to stop making them available for executions. >> reporter: that's what happened in this case. drug companies stopped providing other sedatives which forced oklahoma to search for an alternative or they could just find another method like utah today when it brought back the firing squad. jan crawford, cbs news, the supreme court. >>> this morning superintendent of fairfax county schools karen garza is blasting the board of supervisors for failing to fully fund the school budget. the deficit this year is only about $8 million. that's out of a $2 billion school budget. garza is warning that a likely $100 mill shortfall next year is going to force cuts to programs she says makes them excellent. everything outside of the core curriculum will have to be considered for cutting. the teacher pay has remained flat. the only thing left to cut she says will be programs. county supervisors say they give the schools as much as they could. >>> good morning. welcome to wusa9. our time 16:

yelling, "it's an abomination." [ light laughter ] but eventually things settled down and justice scaliaowed back in. [ cheers and applause ] no, you're not allowed to act that way. beautiful weather today. wouldn't you agree? [ cheers ] finally, this is true. it was such a nice day today that president obama left the white house and went for a walk around the neighborhood. even more amazing, this is the first the secret service is hearing about it. [ laughter ] he went where? pope francis, we're big fans of pope francis here at "late night." any big pope francis fans around? [ cheers and applause ] pope francis spoke out today in favor of wage equality for women. continuing -- [ cheers and applause ] yeah right? great news. continuing the catholic church's long history of being fair to women. [ laughter ] lady priests get the same as man priests. starting today. the pope also called on priests to make more efforts to ensure that sermons are not boring. so get ready for a lot of -- so get ready for a lot of sermons that start with -- [ rapping ] ♪ my name is father mike and i'm here to s

although, you like justice scalia are worried about the slippery slope. and there was an interesting exchange where he said a month is too long, but a day is okay. what's the magic line? that leads me back to ahmed. tell me one more time why you thought it would be okay in light of the persuasive arguments your colleagues have made on the other side. >> well, i think in joan, this concurring opinion that greg referred to, the alito's concurrence had more to do with aggregation than individual collection. and so, again, you know, to what extent is the -- is there a drone following you around? and that is getting stored some place in aggregate for a long period of time. or is it just following you around and surveilling you in case you pull out a knife, it will zap you with some electroshock? i don't know. in terms of -- i just don't see -- i forget, actually, david what your argument was. and if you -- i just don't see the current doctrine not allowing something that is -- it's not the 24/7 that will -- that is, that takes the government action past consti

justice scalia, whom i don't always agree with but who is always perceptive and almost always right to the point, i think in his dissent, and windsor likely laid it out is the principles are the principles that compel a favor of marriage equality. >> rose: adam, speak to thanks i think david is quite right. before the argument in the morning when all we knew was justice kennedy's reasoning in his windsor decision, there was a lot of reason to think he was prepared to go all the way and would say so today. he stopped short of saying so today. will he say so in june? i agree with david very likely yes. but his questioning suggested that he knows he's on the brink of a major transformation of american society and one that would largely be accomplished by court rulings and not democracy and that seemed to make him a little bit nervous. >> rose: what more did you glean from watching this about the justices beyond kennedy and about the advocates? >> both sides presented their arguments well. the lawyers were good. the more liberal justices were skeptical of the justifications the states offe

same-sex marriage would be an abomination of god, dragged out and a movement of levity when justice scaliaefreshing. back to you. >> that's one way you can put it. talk about protesters in the courtroom you're going to hear the protesting outside on the steps of the supreme court. that often happens when you are talking about an important case like this one. pamela brown there for us. thank you for being with us "at this hour". >> "legal view" with ashleigh banfield starts after a quick break. ...is as easy as it gets. wouldn't it be great if hiring plumbers, carpenters and even piano tuners... were just as simple? thanks to angie's list, now it is. start shopping online... ...from a list of top rated providers. visit angieslist.com today. i'm reworking the menu. veggies you're cool... mayo, corn dogs... you are so out of here! ahh... the complete balanced nutrition of great tasting ensure. with nine grams of protein... and 26 vitamins and minerals. and now with... ...twice as much vitamin d ...which up to 90% of people don't get enough of. ohhhhhhh. the sunshine vitamin! ensure now has 2x

to assume chief justice roberts will be siding with the court's three most conservative justices scalia thomas and alito. >> the chief justice would say no constitutional right to marriage, but interesting whether you have a right to have your marriage recognized if one state is going to allow you to have it. chief justice is a very conservative justice, but he's coy in arguments, makes sure to explore the issues with both sides, very hard to predict. >> let's pivot here and talk about something happening today, another controversial issue before the high court decision. the lethal injection drug combination increasingly being used in executions all over this country and whether it violates the constitution's ban on cruel and unusual punishment. tell us a little bit more about what the justices are hearing this morning. >> sure, the justices have said we can have capital punishment in this country and can do it by lethal injection, but now we get into the details. the justices have said you can't have unnecessary and undue pain and suffering, you have to find an execution method that is

wade where justice scalia said they discovered it it was never written in a law.would say based upon finding things seeing things that are inherent that weren't written but you say we should go back to only what's written. >> well, with respect to the civil rights act of 1964 that's justifiable and should have been justified under section five of the 14th amendment. that would have been the more appropriate way to do it. it gives more dignity to the civil rights movement to do it that way. brown versus board of education, the right reasoning, the right conclusion. >> where does it say in this document the u.s. constitution that you can't have separate but equal schools? for years they got away it's separate but equal, it's okay. >> but it was wrong because separate isn't equal and separate can't be equal. you're treating people differently based on race. that's why brown versus board of education was right. >> if you had sat on the jury if you had been a judge on the warren court you would have voted to outlaw separate but equal? >> absolutely. >> you would have v

justice scalia jumped in saying to the inmate's attorney, quote you want to come before the court andll this third drug is not 100% sure. the reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drug. well the question becomes if you can't be sure a prisoner is unconscious and unable to feel pain is the entire protocol then unconstitutional shep. >> the critics are claiming this can be a very painful way to die. >> yeah and justice kagan repeatedly emphasized that and said if the first drug that is supposed to put you in a coma-like state, the second drug gives the person the feeling of being burned alive from the inside. and the attorney arguing on behalf of oklahoma said, quote, suppose we said we're going to burn you at the stake but before we do we'll use an anesthetic of completely unknown properties and effects, maybe you'll feel it, maybe you won't, you can't tell and you think that would be okay? oklahoma solicitor general said that's not the h sides agree that the initial drug the state is using will render a person unconscio

but, also i can't not wait to see justice scalia's reaction. >> seth: right. >> i'm speculating that [ laughter ] >> seth: that would be something to see. [ cheers and applause ] are you surprised at the speed in which in the last decade -- >> totally. >> seth: and to what do you attribute the rapid change. >> reality beats prejudice. i filed the first gay rights bill in 1972 and over these last 43 years, i have been continuously pleasantly surprised. i started out figuring, i could never be successful in politics. because i'm gay and everybody hates gay people and you've got to be popular to be in politics. as i said, by the time i retired, being gay was much more popular than being a congressman. [ laughter ] but, what happened is this -- i think a lot of the reason for people opposing not having fair rights was that, well, they just didn't like us. but, that didn't sound right. you can't just say, "i don't like those people." so they invented all of these negative social consequences. "oh, if they get married, it'll dissolve marriages here. if they can serve in the military nobody

antonin scalia, a brilliant man you go convince him of that. anyway, i'm sorry. that is not a very good answer. you answered your own question. it will always be with us. always. as long as we had that almost fatal flaw in the constitution. [laughter] anyway we are standing between lunch and everything. thank you. [applause] >> she was considered modern for time, called mrs. president by her detractors, and without about her -- and was outspoken about slavery and women's rights. she provides a unique window into colonial america and her personal life. i built it and -- abigail adams on c-span's original series, first ladies, image. women who filled the position of first ladies. from martha washington 10 michelle obama. sundays at 8:00 p.m. eastern on c-span3. as a complement to the series, the new book is available. 45 iconic american women. providing lively stories of fascinating women creating inspiring read. is available as hardcover or e-book through your favorite bookstore or online seller. here are a few of the book festivals we will cover this spring on c-