you are on with mark tushnet. gentlemen.d morning, i have a question about comparing and contrasting juryial activism, nullification, and the role of the supreme court in these issues. guest: ok, so -- i am pausing because i want to make sure i can get the analogy correct. i guess the idea is that when a jury engages in jury nullification, it is setting its judgment about what is right against or over the judgment of the legislature with an active statute, there being -- and the analogy is that the supreme court, when it finds a statute unconstitutional, is also setting its judgment against what the legislature did when it enacted the statute. i think there is a certain kind of parallel, but it is worth emphasizing that when juries nullify, they don't have to use plain what they are doing. whereas when the supreme court the statuted unconstitutional, they have the right an opinion of explaining why in their judgment the statute is inconsistent with the constitution as properly construed. is just a maybe this profe

tushnet explain that. guest: i don't want to dispute the claim that justice scalia and justice thomas are powerful influences on the conservative side. justice scalia has articulated a philosophy or judicial approach of interpreting the constitution according to its original understanding. estes thomas is even more so unoriginal honest -- an originalist. but leadership on the court involves a combination of intellectual chops, the ability of -- the ability to articulate clearly and forcefully a vision of the constitution, a combination of that with kind of a marshaling of the forces, being able to go along with you, and justice thomas in particular is largely -- he is not all that interested in making sure that he puts things in ways that other people will be able to sign on to. chief justice roberts does have this sort of -- i would call it a sort of social facility, and being the leader -- not nearly intellectually, but in combination with the sort of social skills that allow him to assemble a majority.

we will be joined by mark tushnet. "washington journal" is live every day at 7:00 a.m. eastern on c-span. >> what we know of the founders condore, the 32nd -- 30-se version, the guys who were against the constitution were the religious guys, that included patrick henry, who wanted to have religious tests for office holding and so forth. the founders were the cosmopolitans, and yet, most of them were probably christians, but why did they take the approach they did? why do they ultimately come down where madison came down? they believe also that no faith was beyond faction. medicines prescription was essentially a multiplicity of sects. >> there have been important developments in the law over the last couple of decades in terms of government funding and religious institutions. i would say that there were some real issues to work through and to figure out. the rule that govern this area during the clinton years or the early clinton years were different. they changed over time. some people think that was a good thing, and some people think that was a bad thing. there are s

we will be joined by mark tushnet, harvard university law professor. capitol christmas tree.phone opening up our lines for you. you want to know who you think that person is and why he or she deserves the title. phone lines are open. democrats -- if you are outside the u.s. --

you are on with mark tushnet author of the book "in the balance." guest: yes, good morning. what a wonderful time for me to say the decision by john roberts absolutely floored me. i never thought he was fitted to be a supreme court justice at all. to think you can tax the american people and to let the like bk gp --e on the kgb, i no longer have faith in the court. this the absolute worst thing that is ever occurred. i saw earlier something on their that somebody sent in on twitter. or one of those. was justice roberts threatened? i have wondered that exact same thing. we have lost faith. anyone could make that type of decision and think it is ok. millions of people are against it. we wanted it repealed. that comes from a person who comes left or right. right now, i am leaning up. i do not know which way. think the only thing we can say in response to that , thevation is that constitutional issues which is all i am concerned about about whether congress can impose a tax this year is like $95 on people who do not purchase issue --surance, that that constitution issue is relat