basically scalia and stevens -- >> detaining. i litigated. it was personal for him. >> scalia and thomas are genuine good faith originalist. the court will allow detention, but only under matthews versus eldridge standards. and you have the two poles. ct and stevens if i recall are the two extremes. and from a modesty standpoint, scully is the most interventionist. they are saying you can't do this at all without some sort of congressional statute. and he says, you're the president, you do what you want. if modesty is our theory, that answers it exactly. to my mind, it may be as simple as originalism is to me, just asking the right questions. it's not really telling you what the answers are. and originalist scan, in good faith, sickly disagree. one of my favorite things was debating a judge where he and i are trying to be good originalists, and sometimes there are ambiguities or different authorities out there during the originalist era and all you can do is the best job you can. sometimes scalia and thomas disagree in the same way. >> let's

and justice scalia.hen you can just say clearly there is a right to carry a firearm based on taxes history of that's what he thinks. and then out to get into a lot of details and that this law is clearly unconstitutional. >> and with that blockbuster opinion and then if you have got it in him. and not to hold his tongue and in this case and with those majority opinions because he would not compromise and i don't think he ever lost a moment sleep after that. so take a case with that clause and i heard the justice say in those justices. there's seven. and the great majority opinion because he had the assignment. and we don't have enough data yet because it had very few assignments but then to have the aisle think he has a tactical bone in the way that he writes the opinions. but then he knows with the outperformance of two or three justices even if he has a great argument for two and then at least write a plurality of three and then i will join that. because they are more those cases. >> all the liberals l

here, justice scalia does not join.it is essentially a critique of the substantial effect notion that anything that has a substantial effect on interstate commerce is regular ball under article -- is under article 1, section 8. congress may only regulate commerce among several states, but also anything that has a substantial effect. if taken to its logical extreme, this would give congress a police power over all aspects of american life. that is a theme he has returned to again and again and he returns to in his shorter, separate dissent. he is expressing this concern that if we read the commerce clause power so broadly, and the court has read it since the new deal cases, according to justice thomas, it would give the federal government unlimited power. right away, he is staking out this structural concern about the balance of powers between the federal government and the state governments. one of the quips he makes in the lopez case, it seems to him the power to regulate commerce can by no means encompass authority ov

obviously, the contrast to justice scalia who did that somewhat less. what's going on there?> okay. first of all, at notre dame next week we're doing a conference on thee ratification of the reconstruction amendment. there's a a really new, an important new book being publish by kurt latch, university of chicago press, which i encourage you the take a look at. it is an exciting time to do originalism about that moment, the reconstruction moment. so consequentialism, i think it's important to point out that there is a distinction between consequentialism and consequences. and when justice thomas quotes frederick douglass, he does quote him in greeter, you know, the famous quote, leave us alone, and he also quotes frederick douglass in one of my favorite a opinions which is his concurrence in the voucher case in -- where he says education means, it means freedom, light and liberty. and i think he also talks about consequences. other examples i could think of, in the mcdonald case which is the second amendment incorporation case, he talks ability really what it would mean to dis

ng today a little bit about differences between justice scalia and justice thomas.calia previously defended buckley and said it doesn't need to be overruled because nothing is wrong with it. justice thomas explained why it is not the case. eventually all three of them were signing off to justice thomas' opinion about how buckley should be overruled. they're not on the current court. but the power of his ideas and his consistency over time has really been, in these two areas, persuading is colleagues. there's one topic that might have some -- >> that's exactly where i was going to head. you alluded to the fact there are many wins with religion. what i thought i would do is actually to kind of orient us to the people that don't know about his views on partial incorporation of the religion clauses. which are unique. then maybe hit the highlight reel on the wins, which are more than one according to professor garnet. >> justice thomas has very, very interesting -- so far, he's the only one who has really embraced a particular view of incorporation. which we might want t

his courage has been unmatched after the untimely death of justice scalia. our keynote speakers said no to a hasty confirmation. it is too close to an election that will elect a new president. then after the 2016 election, he led the senate through not only the confirmation from neil gorsuch and later brett kavanaugh and amy barrett. but ensured a record number of judicial confirmations including to our critical federal courts of appeal. 30 years ago clarence thomas became a member of the supreme court our keynote speaker voted invade in favor of that confirmation. just as higher young law clerks and justice thomas is known to look for certain qualities in those clerks. a very long list of those law clerks are now federal judges on the circuits catches rouse strauss. ho rushing eyed miller. on the district court's pack hold my cell nichols on the tax court toro and the armed forces court of appeals mags and hardy. according to a 2019 article in the atlantic justice thomas has had more of his former clerk's nominated to federal judgeships under president trum

he is telling -- he has never had justice scalia's sharp tongue. he has never said anyone should put a bag over their head. these interesting cases, particularly race cases, but also about average, ordinary americans that will suffer from mistakes he feels the court is making, he is not afraid to say we do not live in the neighborhoods where these people will suffer at the hands of the gangs. we will come out the wrong way and hurt poor people and minorities because of our bad decisions. that is consequences. i don't think that is consequentialism. when judge jones mentioned his unique voice and unique role, his story his voice, it is ok to say to your colleagues on the court, this is a mistake, and this mistake will have terrible consequences for the people who do not have the same amount of privilege we do. i think that is the consequences argument. >> when i say -- maybe consequentialism is the wrong word. maybe it is context for a decision. the way you described it might be a better way to think about it. one that constantly comes to my mind is

the deep friendships he had with justice scalia, justice o'connor. it feels like all of that detonated around him. he is standing there -- it is not partisan. at the same time he is making a really partisan retirement. >> those values that you just talked about, do you think that the justice in retiring in his meeting at the white house tomorrow with president biden, that he will try to shape the choice of his successor toward somebody with those same values? >> i don't think he would ever say anything of the sort, rachel. i think you would think it was unseemly. and he often would talk about, he doesn't have any opinions on judicial nominations. i think you would describe it as asking a chicken for its recipe for chicken -- which, don't even, i don't know what it means. he would not think it was appropriate to talk deeply about those kinds of political things. but at the same time, i do think he really, really values the idea that the person who follows him we'll look at the court in this kind of mystical oracular way, even if that is a disappearing

i mentioned scalia, who was what the right wanted, anton scalia was confirmed 98-0 in the '80s, unanimous, including biden, and every or senator. but now tonight i can tell you joe biden faces a senate with a republican party that opposes virtually everything and anything he does and if he does something that they said they supported, they might just reverse themselves too. biden's got to count to 50. as a matter of math, this will not be about appeasing republicans, even those who might claim to have an open mind on these issues. and this won't be about debating mitch mcconnell on substance. it will be about leading his party and any wayward democrats to 50. that's it. to paraphrase jermaine lamar coles teaching and learning math, republicans was now on the path but now look at them pitiful, i'm so good at math, count it up, count it up, count it up, 50. count it, count it up, count it. let's turn to our special guest on a huge breaking news evening, i'm joined by former prosecutor and former mayoral candidate maya wiley and former democratic senator russ feingold who knows these issues

he made the promise, a bunch of his young age tried to talk to him out of it and you should name scalia or somebody like that, and not use your first and, you know, you don't know if youyo have any mo nominations, to choose this woman that we don't know that much about. and he said, i like her, either she's a westerner, i like her ethics, i likes the way she is and i'm going to name her. i made a pledge and i'm going to live by it. >> in terms of this decision today, for president biden, as you can tell from the start of the show, there is so much emphasis and there always is,ern who the president will pick for what will soon be the open seat, but i wondered if you could talk a little bit about how the court will change with the loss of justice breyer. i thought your reporting today in fpr about his prag -- npr about his prag tism and behind the scenes effects on ruling, on fellow justice, that seems like that is something thatll is prey hard to shop for in another nominee because you don't know how these justices will work together and it seems like a quality. >> it is a very rare qual

there was a period when justice scalia died, there were only eight. and we had cases where there was a 4-4 tie. i'm hopeful that, in light of justice breyer's health, he'll stick around until his successor is confirmed. i would imagine it's in the summer term when the court is typically away from formal sessions. some vetting will occur, if it hasn't already. president biden has committed to selecting an african-american woman. looking at the list of current judges is obvious and maybe people who have been public defenders or public interest law. perhaps he'll look more broadly. once that person is identified, then the courtship begins. they'll typically have them meet with senators. i would imagine they want to make sure the nominee is someone they can get past kirsten sinema and joe manchin. maybe they get a phone call in advance to make sure this is somebody that they'll give serious consideration to. but they'll have meetings with all the senators to address any concerns they might have and see if they can get their votes, including republicans wh

justice scalia, justice rehnquist have said, you do take that kind of thing into account.n more reluctant to do it. so it's in the mix. >> woodruff: so, marcia, what would you say is the main reason he's doing this right now? >> reporter: i'm not sure, knowing him, he was really ready to go wholeheartedly because i think he truly loes the job and loves the challenges, but, you know, he's 83, he is alert, active, involved in many different things, so probably that ao was in the mix that there are other things he wants to do, as well as his family. he has a number of grandchildren and perhaps he wants to spend more time with them. >> woodruff: what does the court lose with his departure? >> i think they lose somebody who truly tried to be a consensus-maker, someone, who, as he once told me, listens very hard when the justices talk in their private conferences for what he called the play in the joints -- was there some room there to bring them together or closer together. and there was one term, the term in which justice scalia died, in which he and three other justices forme

justice scalia, justice rehnquist have said you do take that kind of thing into account.ers have been more reluctant to do it. so it's in the mix. judy: marcia, but would you say is the main reason he is doing this now? marcia: i am not sure if he knew he was ready to go wholeheartedly, because i think he truly loves the job and the challenges, but he is 83. he is alert, active, involved in many different things, so probably that also is in the mix , that there are other things he wants to do, as well as his family. he has a number of grandchildren, and perhaps he wants to spend more time with them. judy what does the court lose with his departure? marcia: i think they loose somebody who tried to be a consensus maker, someone who, he once told me, listens very hard with the justices in their private conferences for what he called the play in the joints was there some room to bring them closer together? there was one term, the term in which justice scalia died, in which he and three other justices fmed this group that worked very hard to find consensus and were successful

he also chose antonin scalia, in part because it's italian american. that's according to his white house counsel. isn't it important to have a diverse group on the bench? >> not just diversity of personal identities and backgrounds, diversity in career experience as well so that the people who are making important decisions as judges don't just come from, i'll say it, the federal prosecutor, former federal prosecutor bubble or from big corporate law firms or so on. some of these folks are public defenders. share lynn eiffel ran the naacp non-profit. different backgrounds of people bring these things into how they see cases. yes, it is critically important that women -- and as we were talking about with gloria earlier today, four of the justices on the court could be women soon. yes, that is critically important. just as important, though, as diversity in professional experience. >> i want to know, gloria -- >> and don't -- >> go ahead, go ahead, gloria. >> i was just going to say, don't forget, these people are appointed for life. >> yeah. >> so, they

he also chose antonin scalia, as i said in part because he was italian american. is according to his white house counsel. is -- isn't it important to have a diverse group on the bench representing everyone in this country, elliot? >> let me say, hey, not just -- not just diversity of personal identities and backgrounds. diversity in career experience, as well, so that the people who are making important decisions as judges don't just come from -- i'll say it -- the federal prosecutor -- former-federal prosecutor bubble or from big corporate law firms or so on. some of these folks are public defenders. cheryl eiffel whose name has been thrown out ran the naacp defense fund. sort of a nonprofit. different backgrounds people bring in how they see cases so yes, it is critically important that women -- and as we were talking about with gloria earlier today, four of the justices on the court could be women soon. yes, that is critically important. just as important, though, is diversity and professional experience. >> i want to know, gloria, what -- because -- go ahead.

that is justice scalia's opinion. i don't know. here we have a motion to dismiss and all we have is that and before we decide whether the case should have been dismissed or not dismissed, doesn't the district judge and perhaps the court of appeals and for all i know maybe us have to look at this information? >> we are not saying in the normal state's secrets case the court if necessary -- >> could look at it. >> can't look at it -- >> okay. why don't we just say this? say this case needn't be dismissed. and it doesn't displace this 1806 doesn't displace anything that's relevant here. but we should send it back and the ninth circuit was wrong and the district court and maybe the circuit, too, should go and look at the information if they deem that necessary in terms of the relevance to the case and decide its relevance, how it was obtained, and then someone can move like the government, keep this out, dismiss the case. >> the district court, the government, the district court already did that. the government moved to -- >> did the n

couldn't get this image out of my mind the image of the us one dayame to the supreme court justice scaliaad tragically passed away. was the same republican leader who sent this out as republican leaders don't even entertain the possibility that obama will fill the vacancy on the supreme court we will keep the vacancy open in the hopes to elect a republican president to fill it that was eight months at least before the election it was the first time in the history of the united states that a republican leader of the senate used his power not even to meet with merrick garland to even entertain an office meeting to discuss and it was out of the question. the supreme court would have eight members and not one more because there was an election coming in a republican opportunity. and so that's what happened. you remember it well and i do to so with the sanctity i cannot help but remember that vacancy on the supreme court for almost one year i cannot help remember the last year of the obama presidency was denied the opportunity which other presidentsen were given to fill the vacancy ofth the su

that is what then justice scalia said that. the decision below adopts that, that is why i think it would be an affirmance. the court can said it was too early, send it back. you can say fisa does not displace it we don't have to , decide that. we vacate that and sent it back the state secrets portion of the case. it would lead to a similar result. just as congress wanted, the court is looking at the evidence not just to decide if it should , be secret, but if the government broke the law, if the surveillance was unlawful. that i think is the critical reason why, because of that last part, it is not affirmance. that being said, i still want to come to the other part of your question. we only have to win that it is an alternative basis for affirmance. if it is in the question, because you cannot determine if fisa displaces the state secrets privilege without knowing what the state secrets privilege does, then it seems the court can address it that way as well. we said in compliance with this court's rule 15.2 that we will argue t

justice scalia told women to look to congress and not the constitution for their rights. recently i watched the brave testimony for the federal government had done so little something of a dÉjÀ vu for me as it young lawyers sitting behind a man named joe biden on the senate judiciary committee. i listen to emotional testimony of that like a bamby today how the legal system had treated them as second-class citizens. it has been 30 years since that testimony. yet those brave olympians were saying the law still did not protect them. the fbi had turned a blind eye. and i knew the deep reason for this, why? it resides in the constitution. and let me explain then. in 1994 congress passed the bipartisan bill that would've helped women of color, of sexual orientation that would have included the olympians or the survivors of weinstein and others. the original act included civil rights remedy. you go to civil court the criminal justice system doesn't work go to civil court. women do not need to go to the fbi if the criminal justice system treated them poor that they had justice in

back on justice scalia's confirmation, what was it, unanimous or near unanimous? in a democracy, unelected officials should not have this much power. we are in this match because thanks to judicial activists, the court has become a far too powerful tool to invalidate the will of the people, decisions that should have been left to the people and their elected were presented if are instead heavy footed by nine unelected justices. as we saw with roe, that didn't settle anything for the country. instead it just spread rancor and bitterness. so today the court has lost much of its legitimacy, much of its respect, because of its overtly political nature. at least that's the perception. so chalk this up as another example of the collateral damage left leaves in its wake. whenever the attack are history, denigrate our founders, and ignore the plain language of the constitution. so let's hold senate democrats to account. if they do the right thing, they'll prevent biden from putting a rubber-stamp for "new york times" editorial page on the court. if they don't to the right

this is a case that justice scalia would've loved.about the core concepts so central to his legacy is one of the great justices of our time. the first is close attention to the words of the statute, we'll focus on the text of what was written here. and lawyers on both sides have done a good job focusing on the text of the statutes. the second thing that justice scalia always drew our attention to is the constitution divides power between the different branches, and between the federal government and states and the people. and that division of power is really the genius of the american system, that we do not concentrate it all on one individual or one person, that we separated to create checks and balances that protect our liberties. so those are the concepts that will be at the core here. they are concepts justice scalia gave us as his legacy and the fact that two of his law clerks will be arguing today -- host: is that scott keller, he is one of those? guest: he clerked for justice kennedy. penn flowers for the -- ben flowers for the

the image of that news that came to us one day the supreme court justice antonin scalia had tragically passed away. and we all remember what happened next. it was the same republican leader who sent the word out to his republican members, don't even entertain the possibility that president obama is going to fill the vacancy on the supreme court. we are going to keep this vacancy open in the hopes that we can elect a republican president to fill it. now, that was eight months at least, maybe ten months before the election. and it was a first time in history of the united states that a republican leader of the senate used his power to browbeat his members not even to meet with merrick garland, the president nominee, president obama's nominee. they wouldn't even entertain an office meeting with him to discuss it. it was out of the question. the supreme court was going to eight members and not one more, because the was an election coming and republican opportunity in that election. and so that's what happened. you remember it well and i do, too. so when i hear about preserving the sanctity

. >> we know very well that he's an author; i think his scalia lecture at harvard. i would expect the trajectory of the court, in the last year or so. certainly startd before then but certainly in the last year with a 6-3 minority for the more liberal members but also with less ability to move across the lines. there were a number of 5-4 decisions recent that took place because of people like justice kennedy and the chief on obamacare on same-sex marriage. so, he was able and ruth bader ginsburg, they were able to craft these consensus decisions. and they were not as isolated as the three members now are. >> you know, i think it's important to remember justice breyer's been on court for 27 years and been in the minority more often in political terms in all of that time. he joined the rank court, was the junior member for 11 years. longer than anyone but one person in the history of the country. and he's had a real impact because of his willingness to find common ground and consensus building. he is an optimist. he really believes that if we talk to one another, if w

as justice scalia noted in rav versus city of st. paul. true threats of violence are outside the first amendment because laws that punish such threats "protect individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence would occur." the latter point is particularly close to home. for those of us who have investigated tragedies ranging from the oklahoman city bombing to the january 6 attack on the capitol. the time to address threats is when they are made, not after the tragedy has struck. as employees of the nation's largest law enforcement, -- law enforcement agency, each of us understands that we have an obligation to protect our citizens from violence and fear of violence. we will continue to do our part provide that protection. but, the justice department cannot do it alone. the responsibility to bring an end to violence and threats of violence against those who serve the public is one that all americans share. such conduct disrupts the piece of public spaces an

justice scalia was quite candid about the text of the constitution. he's a great friend of georgetown, and he would come to the law school, and talk about the text of the constitution and the 14th amendment. now, he was very candid when he gave an interview. and he explained that the words equal protection, 14th amendment has been mentioned today do not cover women. this is what he said. certainly the constitution does not require discrimination on the basis of sex. the only issue is whether it prohibits it. nobody ever thought that that's what it meant, referring to the 14th amendment. nobody ever voted for that. if the current society wants to outlaw discrimination by sex, hey, we have things called legislatures and they enact things called laws. justice scalia told women to look to congress, not the constitution for their rights. recently i watched the rave testimony of simone biles, aly raisman, and others who testified about their sexual assault and why the federal government had done so little. how the law had failed them. how they were disbelie

as justice scalia noted, true threats of violence are outside the first amendment because laws that punish such threats protect individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur. the latter point is particularly close to home. for those of us who have investigated tragedies ranging from a coma sitting bombing to the generate sixth attack on the capitol. the time to address threats is when they are made not after the tragedy has struck. each of us may understand we have an obligation to protect our citizens from violence and fear of violence. the justice department cannot do it alone. the responsibility to bring the end of violence and threats of violence against the public is one that all americans share. such conduct disrupts the piece of art public spaces and undermines our democracy. we are all americans. we must protect each other. the obligation to keep americans and american democracy is safe of this department. as i have noted several times before, a founding purpose of the justice departm

he always tried to do that with justice scalia and chief justice roberts and the other conservative voicest. >> reporter: appointed in 19 thor by bill clinton, breyer was a critic of the death penalty, a fierce defender of abortion rights. during the court's latest term, he voted to uphold the affordable care act, and joining every major supreme court decision in favor of lgbtq+ rights during his tenure. later this year, the court will vote on the landmark mississippi abortion law which could dramatically restrict a woman's right to an abortion, an issue close to breyer's heart. >> i expect justice breyer's last opinion, one of his last if not the last opinion, to be a fierce dissent. he'll leave the court on i think a sad note, because he was a staunch defender of the right to choose abortion under the constitution. >> reporter: though the court's future remains an open question, breyer's decades of service will form a legacy for years to come. >> from a personal point of view, there is nothing that could be both more interesting and more worthwhile. it calls forth and requires you to put

breyerren has been on the other side from, you know, scalia, thomas, alito in every single d one of those downow the line and it's interesting that he's going out right now when g the court just grantede the harvard affirmative action case because that's been one of the sort of biggest sourcesac of difference between him and thomas in their outlook was looking back the parents involved case and he is still of the view. he's like anchch old style libel in this view that the state can do good at racial discrimination,oo that there is such a thing as know good race balancing by the staten and presumably universities as well. and thomas has a long taken the view that there is no such thing as good racial discrimination by the state. so it's fascinating that , you know right as he's leaving thatt issue is sort of coming right back to the front. so so i think the tone will likely be more stridently progressive whoever biden nominates. the end resultt er i don't think the court is going to change i much in terms of how it rulesnk kerry thinking back on the nomination of what would have been anot

scalia and sandra day o'connor, also unanimous.sident biden says he'll choose an african american woman to join the high court. she would be the first. now, whoever that is, marcus, because we don't know who that is just yet. >> before you go, i know justice breyer said he's actually going to stick around until his replacement is confirmed. is that unusual? >> reporter: you know, that's an excellent question, marcus. as far as my memory serves, it is really unusual. by confirmed, remember, he means approved by the senate. so not just nominated. past retirements have come before the new justice was confirmed. remember, there's nothing saying the court can't work with fewer than nine justices. the tricky thing to me, just thinking theoretically about waiting until the next justice is approved, is that it sets up potential problems theoretically. what if you change your mind and don't step down, for instance? you can't make breyer leave, so what happens then? it's an interesting thought experiment. >> all right, scott mcgrew. thank yo

it's more like what happened when justice scalia left the bench and was replaced, so to speak, by someone with a similar ideology. it will still be impactful nonetheless. >> this is much more of a personal question than a legal question. if we could put up on the screen the potential nominees to replace justice breyer. president biden has said if he gets a pick, his first pick will be a black woman. when you look at those judges, and europyou're right, they are accomplished professionals, there's no question about their capabilities. no question about their capabilities. what would it be like for someone on the supreme court, finally, to look like you? >> reporter: i would be overjoyed and thrilled somebody who looks like me and has the mental prowess each of the women have and the credibility, the capability, the distinction of having served as judges would finally, finally, be given the opportunity to sit on the highest court in the land. and it's not to be taken lightly. we talk about the many decisions that are before the supreme court of the united states, i never had the luxury of l

breyer told "the new york times" last year he was reminded of something justice antonin scalia once told him, saying, quote, i don't somebody appointed who will just reverse everything i've done for the last 25 years. >> i do not intend to die there on the court. i hope not. >> reporter: the front-runner is believed to be d.c. circuit court judge, ketanji jackson, a former clerk of justice breyer who has gone through the senate confirmation process. >> that someone who comes from a background like mine could find herself in this position. >> reporter: also believed to be on the list other women. senate democrats are pushing for a bipartisan confirmation already reaching out to republicans. >> i did talk today with the chairman of the judiciary committee. we talked a little bit about the timetable. as you know, i felt that the timetable for the last nominee was too compressed. >> reporter: president biden only needs a simple majority to confirm a new justice due to senate minority leader mitch mcconnell's 2017 change in senate rules for supreme court nominations. that means democrats coul

pejorative term, the only reason i use it is specifically when a seat is left open simply becausejustice scaliacourt. the seat is kept open for a year. the court's size was basically cut from nine to eight for political reasons. right now, what i'm suggesting is that it's not a perfect solution, but adding four justices would rebalance the situation. it's not perfect, butjust better than doing nothing. just one looming issue the supreme court is going to wrestle with, probably in a ruling that will come out in the summer, is whether to roll back roe versus wade. that is the us—wide right of a woman to an abortion. if the court undermines roe versus wade, given what you've said about the legitimacy of the court and your lack of confidence in it, do you think the american public is going to be profoundly polarised by that? it could lead to a whole new set of difficulties. well, i do think so. i think women are going to see that the equality that they thought they had gained in 1973 with the ability to control their reproductive lives is in great danger. many women will have dangerous abortions an