the supreme court of the united states today has no protestants on the supreme court. isn't that interesting? we basically have catholics and jews. >> i have been very worried about that, i will tell you. [laughter] >> i mentioned it because i thought it was keeping you up at night. the fact is that i have no doubts that they each will do what they said in their nomination, which is they would apply the law, and what justice roberts said is really probably a similar statement. judges are supposed to call balls and strikes. that does not mean that they don't understand -- as a matter of fact, why do you have a diverse jury? the appellate court is just another type of jury, right? the supreme court is a very different kind of jury because the supreme court, and having only had one case before them, i learned very quickly that president -- precedent is not as important as the justices, who will decide what the law is. they will change what the lot is if they get a majority of their sisters and brothers to go along with it. to have a jury made up of diverse cultural views

say i want more justices and more appointees on the court congress eliminated two seats on the supreme court just to deny johnson and the chance to appoint anybody. >> host: that is an extraordinary story. only under a grant it went up at nine and has remained ever since. when does court packing become more of a conversation with one senator to a proposal? finreg the idea that never really it establishes very much. in the year from the beginning to track when roosevelt starts to get letters suggesting it and really does happen right away. it is a fringe idea. somebody says of course, you could do that but it is outrageous. that is what most of the roosevelt advisers said so most of the discussion is not about packing the court but amending the constitution. when things really come to a head there were 100 separate constitutional amendments propose to do with the supreme court to strip away their right of judicial review all together, i am not sure what is left of the court if you do that for social and economic or to allow the congress to overrule the court by the two-thirds vote. these were

supreme court. she's here today to share her thoughts about that battle and about free expression in america. welcome, holly. thank you, ken. now, a membership in the n.e.a. four-- that's not exactly like joining the kiwanis club. no, it's not. it was kind of an honor-- dishonor sort of imposed on us by the national council of the arts when they took away our funding that had been recommended. it sort of sounds like a bad band, you know, that-- or we were later referred to as karen finley and the three homosexuals, which sounds like a really bad band. i've seen them play. [laughs] and yet this has been a battle. your status as a member of the n.e.a. four has been a decade long, really. yes, it all started in 1990, when the four of us were recommended for funding by peer panels in the n.e.a. and then, under political pressure, john frohnmayer, who was then chairman, took away our grants. and it was during a whole sort of public debate about controversial funding for the arts, and we decided to sue th

in last night's daily take i said that i agree with newt gingrich when he said that the supreme court has to work under rules set by congress and congress can limit the court's powers and that the court has taken on to itself the power to both shut down legislation and create doctrine like the ideas that corporations are persons and money is the same thing as speech here's news cobb. insisted he believed the constitution if you read it for the smaller commission of the need for the status quo. the fact is the congress can pass a law and can live in courts stitch through constitution the first leaders and this is the promise of these numbers of. their lives in addition to the we face is the greatest since the poor of the american hostage is the court which is we should run. we settled since he moved the lives. we've done this is only. the once the believe in the firing the leaders. our constitution. i pointed out that the founders never intended this to be this way as you can read in federalist seventy eight federal eighty the supreme court to have jurisdiction over congress and the pr

an overview, what did the supreme court look like? what did 2010-2007 look like. two were affirmed by an equally divided court. five of those cases were simile reversed and two were dismissed for other reasons the court took them off the docket. the court reversed in 57 of the cases it reviewed, rough low 70%. historical par with previous terms. the number of cases they took were roughly the same in previous terms with the exception of the 2006 and 2007 term when they had what lighter docket. now, obviously the biggest change in the court this year was the replacement of justice cagen for justice stevens. -- kagen for justice stevens. and one is asked, how much of a difference did it make? a bunch of people at the beginning of the term thought she would be recused from a number of cases and that would have an impact. we now know from the data that at least knew mayorcally it's hard to make that -- numerically it's hard to make that case. 28 cases she was recused. they didn't really, according to the numbers, matter. 15 of those cases in which the justices were unan

to prevent america from violating a treaty that we had signed but the supreme court couldn't stop there either now if you're arrested abroad that foreign nation could refuse you your right to see the american embassy weirdly the supreme court ruled that international law has no effect on how states deal with their criminals which is strange considering that international laws have trumped american laws over and over and over in the last two decades since our nation jumped into the so-called free trade bandwagon and joined the world trade organization it's an issue i talk about in chapter eight of my book an equal protection. by joining the world trade organization our nation agreed to follow a whole slew of new international laws that protect so-called free trade a feather in the cap of transnational corporations so now whenever our congress passes a law that transnational corporations don't like we can be taken to a deputy o. court and forced to drop that law does have an earlier this year in may when the us took a bite out a u.s. sovereignty ruling that american americans can no

it may actually be at the new york supreme court now to decide this. it'll just keep getting kicked back until it reaches, i think, the u.s. supreme court, and then they'll really have a choice between standing by the analysis they did in 19991 in quill v. north dakota or sort of changing the whole doctrine. and, but until they do that, i think tax lawyers are pretty confident that once this gets kicked up all the levels from new york up to the supreme court it will be decided against new york, you know, until -- or unless it will be a sharp turn in supreme court reasoning if they go from an 8-1 decision 20 years ago to a completely, to taking the other side now. >> host: mr. byrne, are you collecting sales tax in be new york, and what about california? >> guest: no, we're collecting sales tax in neither place because as soon as the law gets passed we, or the night before it gets passed or becomes effective, we send an e-mail to all of our affiliates saying, very record ri, we thank you, we built a nice record together, but as long as your state has th

when north dakota tried to get them to collect taxes, it went to the supreme court and the supreme court found 8-1 in the case that under the article one section 8 of the commerce clause of the constitution says congress has the right to regulate interstate commerce, and from that has been inferred what they kaleed the dormant commerce clause which is the state's right to impede or burden interstate commerce and the supreme court found 8-1 that forced an outof state retailer to collect their tax violates the constitution. now, they left open to the u.s. power to do, to create some sort of national system but the u.s. congress has not done that, so this is flagrantly goes against the grain of a supreme court decision from 20 years ago, and then on the policy side, it goes after people, websites like ours, if we have an affiliate, an affiliate marketing relationship with anyone in california, say, 40,000 people in this country who are raff fill yachts and somebody just in their -- just in their spare time makes pocket money, links to amazon, anyone who goes through their site to us, we pay

so, this is it goes against the green of the supreme court decision from 20 years ago. then i found on the policy side its -- it goes after people, websites like ours. we have an affiliate, an affiliate marketing relationship with anyone in california. 40 paulson in this country or affiliates in somebody made pocket change increate the sights and might link to us and amazon and anyone that goes through their site to as we pay commissions and of california says that's the same thing as having a factory in california. so, we are saying we are very sorry because we love these affiliates that have a relationship with them so thousands of people get their businesses destroyed by california's act and the experience is that it doesn't actually raise the revenue because people move to wisconsin or neighboring states so it's bad constitutional policy. so does it give overstock.com or amazon and unfair and that is on the brick and mortar retailer? >> no it doesn't give an unfair advantage. although you've hit the nail on the head. first of all wal-mart and target because they une

i think the lower court read a dictum in a set -- the supreme court differently. i do not think that was in bad faith. between the trial court and the court of appeals, there is a judge -- if a judge gets reversed, she rolls that the employer gets reversed two- thirds of the time on appeal. think of the cases that are not brought on appeal. it costs money to appeal. she ought to be worried about her batting average, not in the sense that she will go down in statistics, but in the sense of "what am i doing wrong?" . >> let me pick up on the chemical weapons case. this is a remarkable thing that the solicitor general counsel office does in almost every turn since 1870. they look at cases and say we should not have won that one below to read in this case, we looked at it, -- below. in this case, we looked at it, and bond wanted to say it violated by her rights. she should be able to make that claim, so we told the supreme court to take this case even though we lost. they took the case, and then appointed a private lawyer to argue what the government would have argued

and it cannot do here's the exact language and supreme court shall have apologized diction both as to law and fact with such exceptions and under such regulations as the congress shall make yes that's what the constitution says in plain black and white if congress disagrees with for example the citizens united decision or the bush v gore decision they can simply pass a law that says that the supreme court has overstepped its authority and that's the end of a why do you ask the founders write it this way he has to answer is really very simple they wanted the greatest power to be closest to the people. and congress is up for reelection every two years it's the body of the our in our representative democratic republic that is closest to the people that's where the founders wanted most of the power which is why it's defined in article one of the constitution the first among equals the judicial the judiciary is article three as thomas jefferson wrote in an eight hundred twenty letter to mr jarvis we thought supreme court justices should have the power to strike them as jefferson wrot

but the supreme court has limited the possible extent of that opinion because the court has said for many decades we don't want anybody and his brother to be able to challenge any act on constitutionality, the personality, and we realize if the government does tax me to support a church it doesn't affect my tax bill. it's the government taxes, the government spends. we know there's no relationship between the two. after all we are in deficit of multi trillions but let's say this instant all of our debt was gone, it wouldn't change our taxes at all because congress had to pass a special bill for that. so said for example conagra's can give property in this case the executive branch giving property to a religious organization, some protestant church because that was distributed pursuant to the property clause, not the taxing and spending calls. in the school case the court said that the credits we have always allowed tax deductions, these are credits and credits are just like deductions. the only difference is the help poor people more that is credit rich people because the progressive

we challenged the law and went up the ranks and eventually the supreme court said stop and we stop. there was a great sense of despair in some sense, but hopefulness that we would live to fight another day and in spite of those licenses be voided and the fact there was disappointment and we had to stop and everything we had done had been taken a way as well. i think people lived with the expectation that they may see what they now have seen. i don't think many of us thought it would happen so quickly. >> after years of working it's way through the california system. the supreme court voted unanimously to challenge the ban on same sex marriages. >> we are literally across the street and couples could run and demand we offer a marriage license to them. >> we got the call early on may 14th, where they said can you come in and make a meeting. that's where we found out the court already notified the city attorney's office there were going to render a decision >> then on may 15, the supreme court struck down the ban on same sex marriage in a 4 to 3 vote. they fought all the way and won. >

fork cases where the person has two prior convictions, they would go to the california supreme court for further review, and four justices on the california supreme court would need to approve the governor's action in that case. the california supreme court spends over 1/3 of their time working on death penalty cases, and they are under enormous pressure financially. the entire judicial system is. while we do not know what the supreme court would do, it would certainly be a huge relief to them to have these death penalty cases go away. after the death sentences had been converted to life without parole, it would be a question of reclassifying the inmates and moving them into other high- security prisons across california. then, the question of where they were in the appellate process would have to be addressed by the courts. in fact, both people -- most people on death row are still waiting for attorneys to be appointed, so in most cases, their appeals have not even begun. not most, 45%. they do not have habeas counsel, and many do not even have their first appellate attorney. a lot

college, so i saw a lot of them change, including inmates who had been on death row prior to the supreme court overturning capital punishment. many of them were off of death row and sentenced to seven to life, and some of those individuals were paroled and have done very well out in society. i remember one who worked with the catholic church and worked through the restorative justice program to meet with surviving family members. it was actually televised. that is how much that individual changed. then he went on to have a very successful career and retired on a golf course in florida, as a matter of fact. they were debating the death penalty at the country club one day, and he said in two weeks, he would bring its former death row inmate. two weeks later, he walked in the room. he said that he immediately changed the minds of those arguing for the death penalty. that is just one powerful case, but there are many stories like that. i know that was not my question, but -- [laughter] >> your question was how could you bear to preside over an execution. how did you handle it? >> i would tell myse

of the constitution begins with the judicial power of the united states shall be vested in one supreme court that already debunks one of those comments but he was also under the under the perception that congress can keep the high court from hearing certain cases he's also wrong on that issue if congress could limit the court's ability to hear cases and that would give congress unlimited power to pass any law and the block a supreme court for ruling on it and that's just not the case we have a checks and balances from here in the us to prevent power grabs by three different branches of government we have to wonder why new business so has felt at the supreme court oh wait he's not actually matter justice is on the court he's just stealing at this idea from another presidential candidate. but there's that little ole miss where are all articles reports our history of the united states constitution we can live this subject matter the justices rule on we have it was that are already decided what churches to rule on and one thing. so newt gingrich has now turned to michele bachmann for inspiration

supreme court since 1985, you know, where indian nations have lost over 80% of their cases, you know, that come before the supreme court and some terms losing more than 88% of our cases which means indian -- well, that prison inmates actually fare better -- or receive better treatment by the supreme court than our indian nations. and so as a lifelong practitioner of federal indian law, that troubled me and it's also led a lot of our tribal leaders and concerned legal scholars, you know, to ask, you know, is federal indian law dead? you know, and so i wanted to write a book -- i was inspired as i always have been by notions of justice to try to write a book, sort of a unique study of the law to try to understand, if i could, the forces at work that have -- that sort of explain the amazing prevalence of unjust cases relating to american indians that we see in american legal history and we have a lot of very unjust decisions that i think -- many of us take for granted today but they are cases that were decided by the courts during the course of manifest destiny when our nation was bent o

if only the supreme court that is rowing against the tide.i think as our larger society and says i'm just as that the courts will come along. i am optimistic. >> do we have another question? >> susan supernaw, i read it. it's a great story. i'd like for you to tell us what was the hardest part of writing the book? what was the darkest passage? >> the hardest part of writing the book for me was really dealing with my issues with his father and bringing up a lot of some of the trauma that was associated with feeling it as a child and never good enough. and they think after writing and talking to people and going back and writing again, it was like a repeat and it helped me understand where he was coming from and what kind of life he was leading and now he was just trying to do the best he could at that time to get along and try to keep two women happy. you can imagine. but as i wrote and found out more about him, i became more forgiving and understanding and i don't have that kind of resentment and little bit of anger used to have. so i feel re

i'm totally with you against the supreme court decision. >> jon: super mario boners. >> i'm not with you on that part. laugh ( laughter ) i saw you playing the game. >> jon: i have kids. i love video games, but i still think there is a certain limit to what-- i mean, once you start disemboweling your mortal combat opponent, i would think a 10-year-old should have to not be able to buy that. >> i think even a 25-year-old maybe shouldn't be able to buy that. i mean, it really is grotesque. i get that it's free speech, to protect our rights to political speech, -- >> it would be fun to play. i will say that. but, no-- >> you'red any at it i hear from your guys back there. >> jon: settle down. i have to have something to do during the day speaking of mortal combat. the president said he's going to pull out 10,000 troops and everybody is very nervous about that, but we do have to leave these places, like afghanistan and iraq, at some point, do we not? >> right, and we have left iraq in bulk and did so after a successful -- >> how many people do we have in iraq? >> 50,000. >> jon: that's n

uc berkeley professor goodwin liu is appointed to the state supreme court by governor jerry brown. liu's previous nomination by president obama to the ninth circuit court was blocked by senate republicans. the governor signed dozens of bills including a provision of the dream act making it easier for undocumented immigrants to access privately funded scholarships for education. and california citizens redistricting commission released its final political district maps today for public review. we'll hear from two commissioners about the process. coming up next. >> belva: good evening, i'm belva davis. and welcome to "this week in northern california." joining me tonight on our news panel are carla marinucci, politic writer for "the san francisco chronicle." scott shaffer, host of kqed public raradio's the california report. tom vacar, consumer editor for ktvu news. tom, first to you. what's the latest from washington? where do things change now? >> we've been sitting here longer than ten minutes so i'm not quite sure. i'll give you the big thing. this evening by a vote of 218-210 th

when justice stevens step down from the supreme court, he expressed his opposition. he said this process has made the death penalty fundamentally unfair. >> i will let you answer these in order. can you share any sense that you have a death sentence -- that the death sentence inmates were for themselves as human beings? and how could you bear to preside over an execution and how would you handle this? please describe a situation where you would bring so many charges against a prosecutor for job-related conduct? >> as you have both said, this is determined before the execution takes place, this goes from 10 and on up. one of the strangest things that happen to me when i was first sent to death row in was that they were getting ready to execute a guy. and during this course of the execution, they prayed for the victim and their families. this was shocking to me. i am innocent. but everyone here, they will pray. death row in louisiana, you cannot see outside -- you can see outside, and you can see the front gates of the prison, so on execution nights, you can see the pe