the members of the supreme court are the majority the conservative members of the supreme court at that time who later retired very rapidly will get to that. as men of the nineteenth century since the early twenty's in the collective term for the court at that time was the nine old men out of her polite term but it was actually the oldest supreme court in american history to that point in one nine hundred thirty six the average age of a justice on that court was seventy one and some of these justices really had come of age personally intellectually in the nineteenth century during the gilded age or even before that one of the conservative justices was actually old enough to remember as a boy having watched lincoln's funeral procession and so they came of age in a different time and some of them held a very different belief system than the one that prevailed under roosevelt in the nineteenth. was. would you characterize that belief system with regard to things like the general welfare clause or notion. that's actually close the gustafson. you know there was that there was a lot of belief

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

the regulations defined by congress that congress should regulate the supreme court. with the abuses of particularly thomas and scalia the particular agree just ones deciding cases after having you're going to school you change for example thomas' wife or brothers. we cover that morality for the supreme court if congress is on the way to assert the power of the constitution. most legal scholars say the only way you can get at the supreme court is to shine the light of media attention and raise issues with the supreme court and common cause got into this by accident we wanted to target some of the corporate leaders who were moving us in the wrong direction and we discovered that charles and david koch the koch brothers twice a year get corporate leaders together at spas and they bring in political commentators they bring in legislators to move our nation much towards a corporate agenda as opposed to the people's agenda they grabbed last september in their invitation that they had school the zero seven and thomas in zero eight at their at their meetings so some of my st

here's the role of the supreme court as the founding fathers envisioned it first of all there are some specific responsibilities that the supreme court has that that they be you know in cases of admiralty law and disputes between nations and between states and things like that but generally they're basically the court of last resort the you know there is no if two people are suing each other eventually it has to end up someplace and that's where it ends up but the idea of constitutionality is not given to the court in the constitution read article three the constitution is nowhere in there constitutionality lies with the people the decision of what's constitutional or not constitutional is made by you and me through a process called elections the notion of judicial review which means that the supreme court can decide whether or not a law is constitutional and judicial supremacy which means that the supreme court is more powerful than the legislative or the executive branch of congress of the president and therefore can strike down laws that they made and signed is not in the constituti

was never supposed to make laws and veto laws that exist then what is the role of the us supreme court supposed to be the only educated guesses to advise the executive and legislative branches maybe by telling them what is unconstitutional and constitutional by their understanding of what the usa constitution says. here's the role of the supreme court as the founding fathers envisioned first of all there are some specific responsibilities that the supreme court has that they may know in cases of admiralty law disputes between nations and between states and things like that but generally they're basically the court of last resort the if they're in of if two people are suing each other eventually it has to end up someplace and that's where it ends up but the idea of constitutionality is not given to the court in the constitution read article three the constitution is nowhere in the constitutionality lies with the people the decision of what's constitutional or not constitutional is made by you and me through a process called elections the notion of judicial review which means that the su

supreme court supposed to be. well the answer is that it's a that is laid out in the constitution in plain black and white it's the first court where the nation goes for cases involving disputes about treaties embassadors controversies between two or more states between a state and citizen of another state between citizens of different states and between foreign states read article three section two of the constitution is literally all their second they also in article three section two the supreme court is the final appeals court when everything else has been exhausted if two people have a lawsuit and it goes up through the courts and it has to stop somewhere that somewhere is the supreme court and they and they alone in get to make the final decision on who wins and who loses both in civil and criminal cases but they have to do it under the laws passed by congress and signed by the president and they have to do it the way the congress says they have to do it as the constitution says the supreme court shall have

this is been going on for over a hundred years i mean this is a this is longstanding supreme court case law the reasons for the. very simple creating this fiction that corporations are people and it's essentially what they call a legal fiction it's a framework that the courts have invented so that they can get at this question of how you best go about regulating these corporations how you go about treating them in the eyes of the law and so if the government can turn around to do things like confiscate private property from a corporation as it does they do want to understand or that actually goes back to the tenth century in england the literally i mean go back you know read blackstone's law in the seventy's in the eighteenth century and seventeen hundreds and he points out that from the tenth century there had been this distinction between artificial persons which was the king in the kingdom and the churches and in modern days also corporations and natural persons but up until the eight hundred ninety s. in the united states and up until the one nine hundred twenty s. in fact in some s

if it goes to the supreme court and the supreme court agrees with the 11th circuit, declares this mandatere's a serious gutting of this law. people have to rethink this. there's a practical reason for taxpayers. we know the supreme court is going to decide it one way or the other. >> greta, that's right. 27.2 million to maryland, a total of 185 million dollars went out friday to states. i'm proud that in florida governor scott is not taking any of this money. because this is unconstitutional this is what we've been saying all along. we are not getting wrapped up in money. it also affects our businesses. businesses aren't wanting to hire. the heritage foundation just did a study that showed there was a correlation between obamacare passing and people being hired dropping the number of people being hired. you are right, everyone is getting tied up in this money. that's why it has to go to the supreme court as soon as possible. it is in the best interests of all americans, all businesses and to me that's the most important thing right now. >> greta: it would not be unusual to go to the full

built so you can rule the air. >> greta: did president obama dag his feet going to the supreme court? of? friday he got dealt a blow when the court held 2-1 that the individual mandate in the new health care law is unconstitutional. two months earlier, another court of appeals, 6th circuit decided the opposite. now the president has to make a decision. either go to the supreme court right away and ask them to decide this important matter as soon as possible or he can drag it out, probably past election 2012, by going back to the entire 11th circuit court and asking them to rethink what the 11 judges decided friday. florida attorney general pam bondi joins us from tallahassee. any word from the justice department? going to the 11th circuit court or the supreme court right away? >> greta, all the states, all 26 states national federation of independent business, no word yet from department of justice. if president obama tries to make this political, just like he did with the debt ceiling, look what his goal was with the debt ceiling to drag it out until after 2012. we hope he doesn't do

there were seven liberals on the united states supreme court. and, you know, there really was a liberal agenda at the court. justice brennan and chief justice warren would meet every saturday and talk about what are the cases that we want to take, what are the issues that we want to deal with? and they really worked their way through american law with their agenda. every year, huge cases, 1964 and justice brennan's opinion in "new york times" versus sullivan. changes opinions forever. 1964, justice douglas' opinion in griswold versus connecticut. the case that englished -- established the right to privacy. 1986, the case that changed television dramas forever, because it's the one right that everyone knows they have now. 1967, perhaps the best named case in the history of the supreme court, it was 1967, loving versus virginia. what was loving versus virginia about? it's the case that said that states could no longer ban racial intermarriage. think about that. 1967, there are people in this room who were alive in 1967. and it was only then that th

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

that is because, look at what -- you can see that transformation in the supreme court. a lot of people thought when nixon got owl those appointments that the court would change dramatically, but it didn't. in fact, in the 1907's, the court was almost as liberal as it was in the 1960's. the nixon court case. they ended the death penalty in the united states in 1972. declared every statute on the books unconstitutional. they allowed it back in in 1976, but of course, still the most controversial division decision of them all, roe vs. wade. it was a 7-2 opinion with the only two disenters being byron white and william rehnquist. 3-4 nixon justices were in the majority in roe v. wade and i think that tells you a lot about where the republican party was in the 1970's. the change began with the election of ronald reagan. ronald reagan brought with him to washington people that said, look, there has been a liberal agenda at the supreme court for a long time. we need a conservative agenda, too. and he brought with him someone whom i think is a very underrated figure in american

we won't take it to the supreme court. and then apparently he looked at the pictures and changed his mind and directed the solicitor general elena kagan now on the supreme court to file a petition to pursue the case. it describes some of the pictures. one shows a prisoner handcuffed to the bars with a bag over his head as a soldier holds a broom as the sticking it into his rectum. and there are lots like that with one showing a soldier putting up prisoner with the butt of his rifle, prisoners and soldiers pointing rifle that the heads of handcuffed detainee's. while the petition was pending in the supreme court the administration got through congress with lightning speed, unheard of speed. a bipartisan bill republicans fully signed on to that amended the freedom of information act to exempt these specific photographs and they have never seen the light of day. it will be interesting to see what the administration does about releasing photographs of the dead osama bin laden. these folders photographs would in flame anti-amer

i mean, the supreme court is an important voice, but we need have the supreme court, you know, make a decision. is this law constitutional or unconstitutional and given the supreme court and the pow ter has, it could go with the lauer court's ruling in saying parts of unconstitutional. parts of constitutional, but still, until the supreme court makes the ultimate decision about what this health care law is, we're going to still go through this yo-yo effect with the other lower court rulings. >> jonathan alter, briefly, does that mean we're going to be keyed up for a 2012 campaign year situation where anthony kennedy on the supreme court will decide this and all even more explosive? >> i think so. he is the swing vote. the question here is whether the country wants to go back to a pre-1935 view of the american social contract. the supreme court in the early new deal using the commerce clause, the same part of the constitution invoked in this decision said, no, all that new deal stuff, that's all unconstitutional, and then the supreme court changed and ruled that, no, it wasn't constitu

this will be heard by the supreme court. i believe it will be a 5-4 decision. it did l. come down in june. >> the court has already said by the way they weren't going to hear it in expedited version. they turned it down. >> kimberly is right. that's before there was a split in the circuits. huge split in the circuits over a huge issue. >> have to. have to reconcile it be irresponsible need four justices to agree to hear this. they will hear it. >> laura: just praying anthony kennedy. do some hex on anthony kennedy. louisiana sex offender law, now the aclu has decided to file suit saying that this punishment of sex offenders saying that they cannot go on to the internet because that's where they find their victims. this is the way they were going to go. aclu says no way, too broad. first amendment case. kimberly start with you. lose first amendment rights when you become a heinous criminal that preys on innocent children in chat rooms. these are people that are registered sex offenders that have cases that have been brought before them tried by a jury of their piers. found

the supreme court basically threw out these laws and in doing so it cited opinions by among a european court of human rights in strauss burg, and the people arguing this case it is been a tradition of the united states to pay a decent respect to the opinions of others. >> who is the chief justice in massachusetts >> it was margaret marshamarsha. >> originally from south africa >> an antiapartheid been marrieo the former new york city tony lewis. >> not only the echo and the language of the courts ruling didn't she a peel separation of the human rights she. >> she talked about canada. >> the appeals of some canada ontario. >> yes. so you feel that willy-nilly -- and it's going to seep into our institutions. i think what he's saying steven into our institutions notably the supreme court the massachusetts and even the supreme court itself on the reversal on sodomy. >> absolutely. i don't think it's willy-nilly. i think activists at the yale university law school who're very consciously doing this. they are tied to activists in europe, and they are developing this whole body of law that th

supreme court.and some terms losing more than 80% of our cases, which means indian, well, that prison inmates fared better or receive better treatment by the supreme court and our indian nations. and so as a lifelong practitioner of the federal indian law, that troubled me. and it's also let a lot of our tribal leaders and concerned legal scholars to ask, you know, is federal indian law dead. and so i wanted to write a book. i was inspired as i always have been in 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 that work that sort of explain the amazing prevalence of unjust cases relating to american indians that we see in the american legal history. 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 on colonizing the land, appropriating indian land and subjugating the tribes and s

you argued six cases before the supreme court. how did that help you? >> it gave me a lot more sympathy with the people on the other side of the podium. [laughter] a number of my colleagues have argued before the court. the chief justice may have been the best oral advocate in the history of the supreme court. he has had a great deal of experience. justice alito has and justice ginsburg has been i think it gives you a sense of what they are up against. it is a lot easier to ask the questions than it is to answer them. i was reminded of the thing that many law professors say to their classes. it is just as hard to write the exam as it is to take it. [laughter] truly, that is -- no. [laughter] and that is the same thing here. being solicitor general i think he gave me a great perspective on the court. the job that is most like being at the supreme court justice is being solicitor general. your not deciding the case is but you are focused all the time on the supreme court. your job is to try to figure out how to persuade nine supreme court justices to take

peeps lives depend on decisions of the supreme court -- people's lives depend on decisions of the supremeisn't fair to the people. are newspaper editors saying they got to go? >> you are right this is sort of funny, but no joke. one thing that i've heard the time when this came out, governor walker talked about the possibility of having an appointed rather than elected court that didn't go anywhere. didn't seem like that proposal -- seems like it would be dead on arrival in our legislature. certainly, there's been a number of people saying, look this can't go on. something has got to change. >> greta: now it has again to the judicial commission to investigate. -- the commission investigates has hearings to determine whether there is any wrongdoing. if there is, they give it to the supreme court to decide what to do, right? >> you got it. >> greta: that is insane. can we agree that is nutty? they've sent it to a judicial committee to decide. the supreme court decides what to do about themselves. >> it is their policing themselves, yes. >> greta: thank you. coming up, wisconsin governor wal

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. >

the curious thing was its aftermath at the supreme court. here was the famous 5-4 decision which gave the court -- a word of the presidency to george w. bush, but in those five years afterwards, the court moved to the left. 2000 to 2005, no question about that. that is when they ended the death penalty for juvenile offenders, mentally retarded. the case that said people could not be prosecuted for having consensual sex. of course, in case after case, they rejected the bush administration's position on guantanamo bay. why did the court moved to the left? it goes back to what i say about the evolution of the republican party, because center day o'connor, who was at that point the swing justice, saw that the current republican party was not her own a republican party. she did not like john ashcroft. she did knocks lot -- she did not like the war in iraq. when i think of history of the last eight, this will loom pretty large, and that is terri schiavo case, a case about a sick woman in florida he should make the medical decisions, an issue of jud

and now the supreme court justice talks about life on the supreme court.m the aspen institute, just over one hour. [applause] >> good evening, ladies and gentleman. [applause] thank you all for braving rain and welcome to listeners on aspen public radio. and most of all, they welcome to you, just as kagan -- just as kagan -- justice kagan. >> thank you. it is my first, but it will not be my last. [applause] it is great to be here and it is great to be here in this terrific community can i have been taking advantage of all of the music and all of the beauty. it is a wonderful place pierre >> comparing notes on hikes. many of you will see her on the shelves over the next few days. we will take your offer seriously to come back as often as possible. in 1998, a profile of the young in a kagan -- young elena kagan after being promoted to the chief of domestic policy in the clinton white house, she was discussed as the white house's all purpose brain. an adviser to the president on all things legal and constitutional, she developed a reputation that just grew ov