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tv   Key Capitol Hill Hearings  CSPAN  August 24, 2015 4:00pm-6:01pm EDT

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we are looking into all that. it's disappointing:
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>> spec. >> i think they're very capable to get the job done. i don't think any of us know about korea i don't know where they are to develop a nuclear weapon. i don't know exactly what their intentions are with the ballistic missile strike capabilities but we know where they are moving toward we have to be prepared for that eventuality as well. dave mitchell leaving great detail all the preparations is something to pay attention to every day.
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>> do they have the missile capable to reach the u.s. right now? >> i am saying this from newspaper articles. but whether they have capability certainly want to reach hawaii. that is what we are worried about. >> of a joint force command in the event of the apparent attack could you give us some idea? >> the discussion i would not call it a debate as discussion involves the
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secretary of the error force the commander of u.s. strategic command the the voices with policy experts from national security experts. as we try to help command-and-control architecture with a greater intelligence community to respond appropriately as a nation if it became that space had to keep systems resilient or urd develop redundancy or for data communications as a whole enterprise or as a fighting command for all the pieces are there just to make the
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authorities are clear. >> can you say with members of the intelligence community commanding military assets? >> i don't see that happening but there will be a clear set of authorities by all people who participate that visibility of what the owners are doing with any future scenario. >> that new references to get that closer coordination and collaboration. >> is in response to commanders in the region. can you talk about those requirements? >> part of that initiative
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with respect to rotational forces and training exercises. these allow us to trade and operates in the european terrain and it is in that vein. it is air to air capability. >> we have capabilities now molt operating in a multiple type scenario to train side-by-side that is with this is gore. >> about this time last year
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can you free up enough with how many more you are looking into the career field? but the ioc day is never a concern it is full operational capability. what about between now and 2021? with the top line of people we don't have people so for ioc data is not a problem. we will get to ioc. >> i am with the error force times. what about the helm of the pilots are supposed to be wearing during the of 35 reports putting the cost at 400,000 and 800,000 including some memos saying
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some of those capabilities are not there. so what is the actual cost of the helmet is that adequate for the capabilities is providing? >>. >> i don't have that we can provide that. >> i have read the same article i don't know the specific cost. the new generation three homage has just been delivered. so with a time line after to determine a complete the final cost is in production it is the interpretation is situational awareness to call a helmet we have to come up with a new word. [laughter] >> there has been some concerns about the pilots
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that they might be getting too complicated. is there any concern? >> from the time i came into this job three years ago not a single one said i will use it. but they adapt very quickly. >> said department of defense is receiving a great deal of attention is there any new developments on that front? >> yes. we will be announcing to put out guidelines later today to open the services they can provide to open this up
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to civilians in the error force. of course, right now it is restricted to military personnel that are victims of sexual assault to get referrals with the right agencies and so forth so that is a new development. >> can i do one thing i never had a chance before? she has never watched a press conference and being able to introduce her in the pentagon press room. [laughter] these are the people who tell the story of the department of defense. thank you. >>
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[inaudible] >> no sir. [laughter] that is classified. >> what about the russian targets with that concept? >> no sir. [laughter] >> to give a silver star or award? >> not know it is combat action. >> earlier based on reports we've heard 700,000 air strikes. could you put context that is maybe one out of six or one out of eight missions during airstrikes. we heard earlier it is one out of four. could you tell us what is the difference? >> some of the 48,000 is
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tinker's there is so large number and a number where people take off with weapons on board to conduct a strike and we call that dynamic targeting. we did that in afghanistan and a buyback. used that in libya. it is not a new approach. remember we are at war with iraq we don't want to drop bombs it is permanently. so we have to have the target to make sure we don't hurt anyone. if we can get to that in time, i don't know either way to approach that. it is a remarkable discipline.
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>> any updates with discussions on turkey? >> discussions with turkey are ongoing. with the of the for that with independently dash department of defense with the state department on that >> thank you very much.
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it is really not making sense. why were we held hostage? i didn't go anywhere. why were we >> why were we held hostage? we didn't go anywhere. why were we held hostage and
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not allowed to rescue our people? we have proof. why was that the case? with i am from the '60s called the police i will finish one dash finished talking that is the only reason i am here i did not come to represent me. i came to represent the people around a brick made fireplace because that is all we had in december when the hurricane happened in august. less than 500,000 people spread over 50 states is the question we want to go. >> it is not for us to save fish to be rebuilt or not. it is reasonable to ask that
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they have a flood protection system that will work. with puc this a few blocks up the road with vacant housing but first things first. if we get people to higher ground because it cannot be rebuilt. it is not possible. you can still smell the deaths now. you will notice that later when somebody tells you that you so bad after being down here. >> they cannot go win until they demolished when they tear down a house like that, they bring the dogs first. is a typical house where you would still find a body.
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>> the june 198025 years ago, as cbs convinced us to go to the sec for consideration next generation of broadcasting and there's really not quite sure we wanted to do that because we were satellite and cable guides and didn't have a lot to do with the terrestrial broadcast network business but we ended up to do that. then june 1994 cover was blown and a first-ever betty
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said it was impossible while we were cleaning but sure enough one year later all of our competitors were following us and it became a race. >> they're current and two former assistant solicitors general who have argued before the supreme court and look back at the first 10 years of the roberts court and what is ahead for the coming term. this is in chicago. [inaudible conversations] >> good morning. it is nice to see you on this beautiful morning welcome to the showcase panel on 10 years of the roberts court high and a partner at williams and
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connolly. i don't know how many of you remember where you were september 3rd 2005. i was at a college football game with my father the first half game of this season how we got to my folks' house to turn on the tv and saw the breaking news alert on cnn that chief justice rehnquist had died, my after a very short battle with cancer. that triggered events in the confirmation of john roberts as the next chief justice of the united states and within one month sitting in the center chair of the supreme court to hear oral arguments and for me it is hard to believe that was ted years ago -- 10 years ago almost exactly from the date that we sit here today.
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we will talk about a number of aspects over the last 10 years i will briefly introduce the panel and talk about the format. to my right to is miguel estrada. one of the best known and best advocates practicing for the supreme court and has argued 22 cases before the court. first as a lawyer in the justice department and private practice. to my left is adam liptak the supreme court correspondent for the times he has been at least since 2008 to is covered most of the roberts court and other of legal issues before that.
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wife gave former baseball player he is aware having practiced in new york before going in the house that the times so he brings a perspective. and to his left is nicole saharsky she may be a regular person but an extraordinarily the -- extraordinary lawyer arguing 23 cases before the supreme court and serves in the government's office that handles of all the litigation before the supreme court on she has been there since 2007 and is the longest serving assistant and i can say one of the finest advocates before the supreme court and
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i know that from personal experience. in terms of the format, we have approximately 90 minutes we will chat among ourselves for most of that time. at the end we will take questions from the audience or you can send a question through twitter and i will read that out for quite have a few question misheard -- submitted earlier this week. but i will start with a general question for all members of the panel. and if you had to think of areas that we will get to a deep into those issues but i
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want to start with general observations about the overall approach with the roberts court. if you had to identify a distinctive characteristic quality of the roberts corporation or any aspect what would that be? >> starting with the chief justice taking this bader chief justice rehnquist that was not the spot he was originally nominated. he was nominated to be associate justice to replace justice o'connor i think associate justice robbers may have been different than chief justice roberts. in a handful of important cases may have voted differently because he has an institutional perspective in addition to the jurisprudence as he is the custodian of legitimacy and
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prestige and to take the chief spot and that led to justice alito taking justice o'connor spot and we have four versions of the roberts court after all those unbroken years of the rehnquist court now we have justice alito then justice kagan and justice sotomayor. but the only switch is justice alito through o'connor. that is very characteristic that justice alito is a key cases their campaign finance that is my best understanding with what is distinctive about the roberts court. >> with that central role of justice kennedy with the changes with that unique
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perspective and with that rehnquist court said you are as well placed as anyone. >> that makes me all the. -- old as if your time was up the new chief is a law more generous with the clock and make let you finish your time work finisher sentence. that would never happen in the rehnquist court. they have done a law to define that analyst shifting area where the law goes one way than the justice sotomayor has shifted back as a former prosecutor in
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ways that are not all that happy with justice scalia as he tried to move a the clause in another way. you cannot think of the roberts court without thinking of the ensembles of people because it is a different court is very different. >> your arguments have been with any further observations? >> if i think of the court he pledged to be more of an empire but to be administered and incremental approach because the things that you hear are gay marriage where it isn't
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necessarily clear where it takes a measured incremental approach but the the court has cases very narrowly and what they need to decide the case and the point that you made that chief justice roberts is probably different than associate justice roberts and to be very aware of the court's role of perceptions inside that courtroom. but they gave marriage case read the descent from the bench and we have never heard him read a dissent from the bench he just doesn't do that. he may concur or dissent and we were even talking about that could we remember any time? maybe when you remember one but it takes a chiefly
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approach. pcs himself as that figurehead to take the court where it needs to go but not pushing those boundaries. >> the next few minutes i will talk about the chief justice style to talk about personal style and oral argument and his agenda and he famously said after he was confirmed he wanted them to decide more cases with judicial modesty. we will not go when any particular order but with any particular aspect of that? >> on a binge of very smart lawyers he is among the smartest with the exceptional legal craftsman a very good writer only he
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and justice kagan write opinions from a standing start you really understand what is going on there and make it crystal clear that is an exceptional quality. >> key is a tough man but can be tough with oral arguments. >> but the old chief was tough and nasty and dismiss it in a very charming way. [laughter] he would say blob blob law and you knew he did not give a darn the she would yank your chain if they did not like the position you were arguing he would cut you off quickly and the red light went on the senate to save a carnivore rebuttal and chief said but you didn't and that
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was that. [laughter] i think the chief i have not got on the bad side getting fully is it a better understanding so he is a little gentler with the people he is questioning. also because he used to be there and every so often with administration. >> but because he was in the office? >> i don't think so. we are probably jumping ahead a little bit but there were some cases that he and justice alito see as government overreach that he is not happy with. where he gives the
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government a hard time is not high profile or overreaching case for triad in an arcane judicial review not something to get people out of bed in the morning and he questioned the very aggressively why should we trust you or trust the government? i'd make $5 an hour why are you yelling at me? i am doing my best. [laughter] i can believe the government would save this but you work for the government and you know, why. . .
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or less about then the old chiefest. >> let's table that permitted because i went to get to that and i went to talk not only about where the court is on sensitive issues, but what the court is interested in, but let me sort of ask one last question about this. we have a chief justice here who actually clerked for the last chief justice. he worked for then chief justice rehnquist and was one of the pallbearers at his funeral. >> as did ted cruz. >> i'm curious to what affect he models himself early on the late
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chief and as you pointed out came into this interesting situation where he was joining a number of members of the court who had been together for this unprecedented period of time. do you think he started out more like the late chief justice and changed? >> i don't think on the right person to answer that, but i will answer a slightly different question than when you asked. i think the fact that he clerked in the fact that he is so highly credentialed is characteristic of this court, which is all bowyer's who attended hiebert-- harvard audio lawsuit with the exception of kagan and no one who has run for elected office quite unlike justice o'connor who was a public person who served in all three branches of the arizona government, that you do have in roberts and the rest of them and the old chief talked about this, that there is a tendency in american judicial life to become more and more like the europeans, so you don't
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have what the brown court look like of a former senator or former california governor or former attorney general, large public personalities making decisions, but rather highly credentialed lawyers who almost from the beginning of their career had only one goal, which was to become a judge as in europe where being a judge is a lifelong career and i think you see that with this. >> is he his own man? >> i assume he answered. >> yes, you wonder whether he can read, but he is definitely his own man. i think adam's right to read the court is a professional court and they are all very highly skilled technical lawyers, which has not always been the case. i don't actually mourn the passage of the warren court.
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if you still read it opinions they are incomprehensible, so, i mean, etiquettes good to have professionals guild court and i think it's good to have good technical lawyers. i don't buy into the myth that we had to have a senator in a governor. whose sole purpose is to bring it something other than law to the law. i mean, i wish the current court would have brought the law to the law, but that is where we are. >> so, let's take up items invitation to kind of look at the court's docket and to look at some substantive areas of the law and to pick up on the question that adam was trying to post to himself, how has the court changed in terms of its priorities in the cases it puts on the docket? one of the questions i got on twitter was, can the panel talk about the courts ever shrinking docket and so i guess part of the question is, is the docket really shrinking? second, where is the court
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focusing its energy nowadays on how-- and how much can we attribute to the chief? >> i think some of that, i don't think the docket is shrinking. i think people are relatively short memories. i was a law clerk in the 80s where the court heard about 150 cases every year and in september, october 1988, congress changed the law got rid of jurisdiction in most cases with the supreme court and it turns out a lot of the cases the court was hearing then were challenges in the state proceedings that were really had no business being in the supreme court because of the constitutional question raised and it was mandatory jurisdiction in all manner of things that are important to the parties, but not that much to the country. since congress changed the law in 1980, you have seen a very sharp drop in the number of cases the court hears, but i think it has stabilized around
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65 to 78 a year and i think that it has been there for several years. i don't think it is shrinking. i think the court is exercising a lot more k are now but it has choice in the cases it takes and the chief justice have come to the court from the law background has some influence from what one can tell. i mean, others may have contributed. you have noticed that whereas-- the court used to take one case every three decades and now they take several each term. mostly to clip the federal circuit's. i mean, the federal circuit if they return so often on cases it makes you think you should have a specialized court for those cases. [laughter] >> well, at least with regard to this aspect of our discussion, nicole, the court seems to be
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relatively differential to the government when it comes to which case it degrees to hear and tensed to agree with the government's view, right? >> it does to read a lot of what people see with the rise of the robber course taking a lot of business cases we don't necessarily have a dog and a lot of those fights, but we have been in some of them. if i think back to when i was in private practice i guess at the beginning of the roberts court i remember the kinds of things that the business community was up in arms about like punitive damages and there was one case with the exxon before the supreme court, but there was not a lot out like the business agenda, but now there is the class action concern, walmart case and even in areas like security fraud the government has an interest in those and we have been in a lot of them and i think there is a very serious attempt to get cut backs on the part of the community and now with union cases even the cases that have been granted for next year, so those are probably the
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cases the government has less of or as much of an interest in innocent business community and some of those about whether to take them issued invitation to the governments, a call for the views. we had this should we take it or should we not. i cannot say they have deferred to us much on those business questions, but it's interesting to see more cases. >> adam, as our color commentator, what is going on with those changes in the court's docket? >> so, i am persuaded-- i study on this and the rise of the specialized supreme court bar, which continues to dominate and increasingly so both at the concert stage in the merit stage and the increasing likelihood that a business group will find the right case and the right lawyer to launch a certain petition has aided the core, which is pushing on an open door.
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and increasing its business docket and we talked about some of the kinds of cases and i also would mention arbitration. the business community has done well in this court and i think it is attributable at least in part to the small number and some of them, this stage here, but the ones in private practice, the small number of lawyers who really dominate the docket. >> pigalle, do you agree with that in terms of why there are more business cases on the docket? >> know. you can always knock on the door, but they can always slam the door in your face and i think way back-- ken starr, i think when he was the former sg wrote an article bemoaning the fact that there were these crucial business issues that he tried to take to their supreme court to no avail, but it was indeed the experience of private practice at the time that even though you had-- you can assign all all that in the court was
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not interested, so i think it is maybe part of what he said which is pushing on an open door in this court is more receptive to believing that those issues are as important as the support and clause in sub subsection of terrorism and the fact of the penalty act in which they take several a year. >> but come i think part of it is organization on the part of the business community. i mean, think of the rise of the chamber of commerce and the job robert conrad did there in thinking what issues do we want to address in that supreme court of the united states and just looking back i was kind of pacing through cases the court was deciding in the 2005 term as opposed to now it seemed like the business issues that the court are getting has been kind of brought up better through the courts, the walmart case was like a huge and attractive case, i think from the business side.
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there are certain issues the business community has just been pushing kind of better than if you look at the 2005, term. there were some business issues there, but it seemed like it was more scattered and i don't know how much you attribute to the lawyers and how much you attribute to the court if that is an agenda the court has, but it is definitely happening there are definitely issues that keep coming back, security fraud, class action etc. >> to some extent but corporate's a sign on the door saying please not, so justice alito, for instance, has made it clear he would love to have another case and he got one in short order about public-sector unions. >> you write an interesting piece and i recommend everyone on the substance of justices inviting future petitions for review by saying this is an issue we would really like to consider in the union cases one of those. if the number of cases on the court's docket remains static and if the court is taking more business cases, what is the court taking less of?
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i will offer one possibility and you guys can either agree or disagree that is cases involving federalism and the relationship between the federal government and the states. when i was in law school the big cases were lopez, a case that imposed limitations on congresses clause power, seminole tribe and all the cases on sovereign immunity and a lot of those issues largely receded from the court's docket. >> that seems right and one perception i have the court and not any particular case, the back towards the beginning of the roberts course was the court was granting to resolve circuit splits, like the courts clause. and it might be on some issue not many people care about, but they would do and not i think the court is taking cases more along the lines out, we think the decision below is wrong and maybe every celtic-- court held this way, but we are going to take it because it looks fishy to us and i will put that one on the table for now, but i think maybe it is a level of confidence.
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i think this is a competent court in many respects and it's a level of confidence about what they think matters in america, but it does not seem as random as it did in the beginning of roberts court. >> is federalism just a low priority for this chief justice? >> i don't think it was a high priority for the old chief, but it was a very high priority for justice o'connor and when i was a law clerk i do remember that we had some of these cases and she would walk the halls and she would come to my boss on a federalism case and i saw her like going down the hall and like having justice clea and talking about a clause. she would not be put off on those cases and i think the chief was-- after all it should still be a lot, but i think he was not pushing as much if she had not been actually the engine. >> do you attribute that her background?
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>> i think she coming from the west, i mean, from arizona-- >> not california. >> yes, the real west and having been a state official in the real west she do these things really seriously, sort of like a personal slight when the federal government came in and trampled all over what state governments were doing because she had been missed a government. that is no longer there and i think the old chief was congenial with the point of view, but not pushing it. she was pushing it. >> adam. >> this chief justice except when he was in private practice we include federal governments. >> as have many of the newer members of the courts. that is the common threat. >> well, let's talk-- >> the interesting thing about justice o'connor leaving as there is the rise everyone talks about the rise of justice
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kennedy is the swing justice-- slip of the time. >> not as much as you would think. >> one might have expected him to push the federalism agenda almost as much and he is sympathetic to it, but not always carried there are cases that could have gone on at elizabeth's grounds and have not, so it's interesting to me that he could have played that role and he clearly did not have the same background and perhaps same passion as she did. >> he pushed federalism in the first marriage case and then stopped pushing it. >> on that note let's turn to substantive areas of the law and let me sort oppose one of these sort of tried-and-true questions. everyone talks about the roberts court, but is this really the kennedy court? >> in a five-four decision, two thirds of the time it is kennedy plus the liberals or kennedy plus the conservatives, so yes,
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of course. at the same time the chief is in the majority almost as much as kennedy and that chief justice when in the majority gets to assign the majority opinion and that's not an insignificant power, so in that sense obviously-- >> are you suggesting that is not entirely accidental? >> i am suggesting that, yes. it is a close thing and by voting with the majority you can find a way to give rise to a narrower decisions, you might be tempted to do that. >> just to give an example, i was kind of thinking about this that there is one of the issues in which i think the business community has been pushing and the chief justice has been acted in security fraud and there was a series of cases about this idea of fraud on the market, the idea front of the markets way of proving alliance, which on the defense side it was believed to be too friendly to plaintiffs especially class-action plaintiffs and their two
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planes-- cases and the first one had a narrow question with the fifth circuit had said you had prove a certain something in classification to go forward, but you can still rely on this big brought on the market theory and there was a psychic case that actually address, should you have this brought on the market theory to read the first case was this narrow case in the chief justice wrote the opinion and the position of the government was kind, which was the fifth circuit was wrong to make you prove this extra think and the theory was valid etc. that decision prevailed and then we had the bigger question, governmental participation and should you have this theory at all and i remember briefing the second case and i thought we have already won this one so i will look at that opinion and see what great things are in there that i can use in the brief and the chief justice wrote it and i'm reading through this opinion and i thought wow, it's that almost nothing helpful it is written so narrowly and so with the knowledge that this other case is probably coming that it really does not advance the ball much at all and i thought this is a very talented
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person who is deciding the case in this way knowing his other cases coming and whether you say it's because he was the course to decide: case narrowly or if he has an agenda with the respective issue, it's example where really was-- a. >> narrow, sort of accrued to the chief benefit and allows him to exercise that power to control the opinions more often? >> yes, and to follow-up on the coles point, the two voting rights act cases are a perfect example of this where the first time up and the challenge the section five voting rights act that chief justice writes a very narrow opinion on-- as to which i think everyone but thomas signs on, but in the position what nicole just said here is the chief put in a couple paragraphs that would come in very handy when shelby county turns up a couple years later. they are saying we already decided this is principal called
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equal sovereignty of the states, which you will search the constitution in maine for and having decided that we can now go ahead and effectively start down sectioning. >> i think that is correct. i'm not sure to what extent there is a conscious decision to write narrowly for instrument a purposes. if you think about it and i assume he has and if you thought in this way he would've thought about it, it's not likely that we are going to have a hillary clinton administration in 2016, and therefore his colleagues will not get any more congenial as time passes and if he were really instrumental for instrumental reasons he would be writing more broadly to cemented things while he has the boat. but, in part he isn't and so you would think he is writing these things narrowly because he actually thinks that if the appropriate rule of the court, not because he is doing it for any instrumental reasons. >> isn't one side effect to
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writing opinions narrowly is that issues come back to the court in short order? nicole has referred to halliburton and that is obviously one such case any other such case, of course, section five of the voting rights act, shall be county and of course now with fisher, the affirmative action case, which is also the case that got sent back to terms later. >> i mean, their babies-- the cheap or whoever writes it may see some benefit. let's get it out now and have an orville-- oral argument carried i understand that. that is essentially what happened and it ended up being the case that the broad rule prevailed and i think a lot of people thought that rule was going down basically and it did not. >> with the chief justice and the majority. >> it was surprising.
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their decisions, i think these court in these decisions from the 70s and 80s in their written in a different way reasoned in a different way than the court does things now. they are written in broader strokes with maybe not as much citation or reasoning, so they are kind of giving the stink eye to these decisions. if you can come back and persuade them, look there is a basis for these decisions that is a good one then let's stick with it in the court says sure, let's stick with it, but they are willing to look at them again. >> the question of this course attitude and how this course attitude may be different from that of its predecessors. any thoughts on that? >> i feel there is a lot of discussion of the difference between upholding earlier decisions and the statutory context where congress is at least in theory to come back and change the court's decision and constitutional cases where the court has the last word, so there is a lot of talk about. the data actually suggests on the usual metrics of activism,
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which is is this a court that overturns a lot of earlier decisions, is this a court that strikes down a lot of laws. it is perfectly in keeping with earlier courts. although, when it does do those things it tends to do them in a conservative direction. >> i mean, same sex marriage, juvenile penalty and all of those cases where justice kennedy is actually voting opposite cases that he joined in the 80s and where the people are joining him are the left of the court. >> those are all exceptions that prove the rule. >> what are the examples of the rule? >> high-profile cases like voting rights, just things that they are very big decisions. we have not talked about campaign finance, but cramping finance in that role this court has played has been huge. if you had told me 10 years ago that a corporation is a pertinent the exercise of
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religion rights and speech rights i would have been surprised. >> and the second amendment has completely revolutionized the view of-- >> rec. you were going to say corporations-- >> just you wait. >> with managed to refer to several provisions of the constitutional at once to read let's start with the first in the bill of rights, which is the first amendment and is that an area in which the changes in the court's membership has made a difference? >> speech or religion? >> let's do both. let's start with speech. >> i think the court almost to a person is a far more pro- speech court then that rehnquist court was and i think that is a factor of the changes in the membership other than the chief justice is as well. there was a case dealing with sign ordinances and arizona where this whole thing was-- the night circuit upheld it because
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the hornets basically said if you have a sign uganda's and if you have a directional sign and you go that and it was somewhat surprising. so, the court ultimately-- either justin keegan writing it current and sane window even have this. scrutiny, inter- scrutiny, but you have a lot more cases. we do see pretty much everyone in the court say no, no, you clearly can do this and i think you had justice rehnquist himself. >> as skeptical about speech rights claims as any member of the court. >> miguel is right that almost to a person they are pro- speech
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the read cases actually very bold and makes the point that i think is moot that if something is content base and trickiest strict scrutiny and for the proposition justice thomas that cited a pharmaceutical marketing case and i think it may well be part of this court's agenda to make sure that all speech restrictions in a commercial setting or political setting are subject to strict scrutiny. on the other side of that expansion of strict scrutiny is the only two decisions as far as i know, the majority opinions upholding laws, challenge under strict scrutiny come to the roberts court's humanitarian law project and williams yulee, so we have a simultaneously
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broadening of the application of strict scrutiny and a cheapening of its bites. >> i hope everyone is significantly caffeinated because i want to bring up standards of review. has there been any religion of the importance of standards of review in this court? >> i think that's-- i think that may be right. even thinking outside the first amended context i have a fair number of criminal cases and i feel like this is just that the court is very confident that it can look at something and decide like right or wrong, reasonable or not reasonable and if it needs to explain that in the context of a standard or review you can do that, but for a lot of it the court is looking at it and looking at what makes sense in making their own decision. the interesting thing to me in this isn't indirectly answer to your question, but it is not just the core is pro- first amendment, it's pro- first amendment and context where you could have seen them going the other way. like some distasteful speech, steve's it-- stevens, a
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dogfighting case. you have these people protesting military funerals, i mean, that is not a nice thing to do. we had the stolen valor act, which maybe was a bit of a weird act, but people impersonating nab purple hearts in idle-- you think back to 80s we had the flagburning case and that was like, wow, that is a hard speech to protect and it's a tough thing to watch someone do. that is at least political speech. this, what value does it had to make a dogfighting video or protest these funerals? but, the court doesn't seem to have any qualms about this. >> except justice alito. >> he was the lone vote basically. >> what about the course for-- approach in criminal cases? it feels like this court is more
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friendly to criminal defendants. >> i think miguel started with this that there were things happening in criminal law before the chief justice took over and it's mostly with these trendy line of cases and with the crawford line of cases. crawford is the sixth amendment confrontation law. putting in the end that they etc. and there is a lot of question following is essentially the sentencing guidelines at least in a mandatory way were invalidated and were made further from the government's perspective and that was a huge deal. crawford spawned alike a large number of cases to figure out what it means. when i was in law school we learned ojai zero versus roberts, that you have to had issue over liability and then you can prove them in court and over a. neck of years that court decided what statements were good and what statements were bad and everyone knew the rules and
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maybe there were arbitrary, but they were set and crawford kind of put that out the door. that poses a lot of practical questions about 911 calls that the court answers or last statements like a person who analyzes dna whether they need to testify, so i don't know how much of that is attributable to the roberts court. >> in fact, a lot of that was in hand before chief justice roberts and one of the things that happened in crawford is that his colleagues, i mean, he is not happy that it. justice scalia is not, but he was the one pushing for criminal sentencing and in some ways people like justice sotomayor have dialback back in ways that justice scalia does not like and you might think it is really getting back to ojai zero versus roberts. where the opinion of the court
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by justice alito started out by talking favorably about ohio versus roberts and cause a connection on the part of justice scalia who could not bring himself to even name justice alito in the opinion saying the author of today's opinion and he was like really angry about it. >> i think he was writing in the john read that only justice scalia writes in furious concurrence:
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>> >> if you make two trips to the supreme court in that case. >> anyway.
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[laughter] >> to be fair you may have had fewer prosecutorial options. but of course, are not referring to you personally but the government. >> but those who do get a law of press with criminal cases those are harder because those were cases which someone prosecuted to that the court thought maybe constitutional cases with the ninth amendment the collection of dna samples was pretty big as well. [laughter]
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>> the fourth amendment cases are interesting because the court as a whole is struggling with of question of principles of technologies. >> i think that is super interesting starting with the gps where the court said you were out in public putting out your trash and the police are looking at what you we're doing that is nothing wrong with that but if they have of gps and track you for longer than a month? the court said gaspar an unsurprising i remember there was a question that was asked of the deputy solicitor general could you put the gps on our san track us for a month without a warrant? he did not immediately
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answer yes and said a justice of this court? who would possibly do such a thing. [laughter] but then came maryland vs. king with the new technology case that the government one then it swung back via the re with the self paul case recently so to look all the data on the cellphone. >> this is not the case that breaks down and a traditional way. >> to talk about in the legal community to break down what the justice things may happen to them with their children that is the problem like those that were arrested and questioned if they could be stripper's but a justice would not be
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arrested but what if they were in their cars? >> than there was an article covering the supreme court and there was a case in 2005 where somebody whose client flushed the cocaine down the toilet. and this could happen to you. to draw a line to say this could happen to you rarely works in the supreme court that the with that phrase
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but with the gpa -- gps and sulfone case -- cellphone case. >> but that is what they stand in to see law-abiding. >> they think that is reasonable. >> there were two doggies is a a couple live years back blood was the of reliability of said drug sniffing dogs or if you get a positive could you come back later and a separate question if a police officer was coming to your front door with a dog that happens to alert the is there a fourth amendment problem? and basically that dogs are reliable because we rely on the dogs.
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they do an amazing amount but the court was not happy with the idea of a dog sniffing at someone's front door and not necessarily of lots of doctoring or prior case law think it favors the other view but they felt pretty confident they could make their own decision that was a reasonable. >> this brings up another subject to the government more generally the obvious person to ask is the representative of the government. you have talked of the skepticism to the s. g. office but is there a greater degree of distrust of the government generally or the of representation? has that changed with the roberts court? >> i don't think so. it calls for the views of
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the of solicitor general at the certiorari stage yet has expectations if there is a 50 state surveyed day expect us to have those questions and then justices are pretty happy with those answers to read a law of decisions the government may prevail and reads like the government's arguments. i think the loss argument is good for this year but there has been a few cases in which some member of the court has prosecutorial overreaching like the chemical weapons like those were upset about. >> that with lost record has gone down some the last few years that is attributable to the administration?
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>> and what happens it was a big win for a liberal of the court but if the issues change that may look very different. you get a snapshot of what the doctor brings with the random assortment of cases it you cannot draw a conclusion. i was in the office in the '90s for five years it was my job i used to get eight free she would call me a lawyer for the clinton administration but i have to go there to argue on behalf of them and the rehnquist court was equally skeptical.
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>> you have any observations on interactions of the court and the federal government? >> i think there are cases where the s.g. office party as a consequence of their high quality work, it's the court liens on them, if there are aspects of the argument, unavoidable aspects, the chief is likely to make the point. >> but it is also the chief justice dial i think he is somewhat gentle at oral arguments if a justice uses up your time he would give you some extra time gore is an advocate doesn't get it he will try to help move the argument all along been on
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the flip side if he thinks he has people there that you get it and are prepared and can take it it doesn't always work in their favor. >> one other aspect with the relationship of the government is deference to the government when interpreting statutes so-called chevron deference i hope everybody is full decaffeinated talking about the role of chevron. is the court moving on that issue of full-fledged difference? >> i know if there is a trend but there are cases i have argued i thought we had a pretty good claim there is a statutory interpretation we had a pretty good argument but we also had agency decisions you would think they read the to a
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chevron deference. sometimes it happens sometimes it doesn't but the court had the action doesn't want to go a the statutory reference? and in the cases i am thinking of we prevailed which is great but they write interested. i have been thinking about that. should i think about that as a problem? i think it is attributed to the court's inability to resolve cases it think it says we're looking at the statute may be the past or the arguments but we don't need your deference it doesn't mean you are wrong but we don't need that. >> the case or oral arguments of the chief justice seemed very interested in the possibility to give the ira's ability to change positions down the road but then you disparage that very
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idea is to reduce said it is said to a big of a deal for the irs but it is a court that is confident. >> also the sec related case but in argument where it issued a decision that we made this point total think the court even mentioned it that we are not even interested. >> i want to make sure we have time for questions from the audience but let's talk about where the roberts court is now and where it is going. what to do you think are the most significant decisions the court has issued in that time? >> with citizens united.
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>> you were clearly ready for that one. and the penalty and the rulings somebody who may not be technically retarded but challenged. >> and to cut back of the death penalty of cases of multi murder or juvenile life without parole. they have narrowed harsh punishments. >> what is the long term significance of the first decision? >> except for the medicaid expansion port. >> basically an overruling of south dakota with justice
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o'connor dissenting. >> normally if i think about the big decisions it isn't because of what it held as a gold matter that i guess is a big deal but a sense of public outrage and public engagement i know how many people know this but the court has had public protest in the court of citizens united a couple of groups were people are standing of during oral arguments we want to take the country back and we are unhappy and i cannot think of any other issue other than the gay marriage case where somebody had come into court to do that. i don't know what the old chief would have done. that is not cool. >> the one brought a penn camera than there was a camera in the court so citizens united is
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interesting because there is a reaction almost like bush reverses gore that have people up in arms concerned about the legitimacy of the corridor really having an agenda. >> that is a function of the coverage because people read the decisions? you blaming saddam? [laughter] -- adam liptak? >> no. but there are things back the president of united states did mention this in the "state of the union". but when you have that level of political the station by the president you should not be shocked people who are his followers who agree philosophically with him think this is a big deal. >> i agree it is a
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caricature and blamed for stuff they cannot be blamed but it does seem salian to. the other night justice ginsburg was asked the most disappointing thing the court did in her 22 years. she said citizens united. it is a flashpoint. and a shorthand for the way many and elections in general is not satisfying too many people and people blame it for many things. rich people could spend money before and after and if there is a problem in elections that to be the problem of the citizens united endorsed the disclosure requirements it is not their fault. >> to you think justice ginsberg in part the way it went down with granting a
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real argument back and forth how broad the a would write? an interesting topic i don't think she was crazy about that but i think she cited that as a way to speak to an audience if you say that the left side heads explode. >> one last topic. we have 10 years of the robbers core of what to the next and look-alike? >> i think about most of justice kagan. she is super talented i worked for her when she was solicitor general it is shocking how quickly she gets the issue there are things you have never worked on my guard came immigration or false claims or something like that and you explain
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the issue and she gets it so quickly and your questions at oral arguments are so good but the reverse years and the decisions she has written common she started off very measured like the chief i will get my bearings and look around to be friends the other justices she has not made a strong stand in the way that teeeighteen has. she could do a law to shape the court for a long time i think that will be interesting. >> will the direction of the corps really be decided by the next presidential election? >> yes. >> yes. [laughter] >> what have the things that i thought about the supreme court is renamed the court
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after the chief justice. but he does not really control the court as he runs the executive branch but he is facing a real prospect if the election comes out and that hasn't had been been a while? >> that is so weird shorthand to give a single name were they have one vote for the personnel changes. >> to what extent do you think that change of the direction of the court has influenced the chiefs thinking question mark i
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don't think it has but if you were instrumental he would be riding on the areas but he isn't either he has a law of confidence over this isn't the appropriate role going forward. >> although he may have a longer time horizon. >> that is low level of spending six years olivier's serves as long as justice stevens in will be another 30 years. >> a very long game for those to. >> in terms of the issues the court has on the docket in the coming year, what is left? it is like a touched on the highest profile issues constitutional issues.
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>> foreign relations. >> they did have the case last year. >> next time we have one person one vote we have affirmative action action, public-sector unions , i would think the right side is ahead in most of those cases so the texture looks different spirit those are very different. >> of course. >> there is a law of times if you look at what the court has granted certiorari i think it will be boring. but this time last year they had not decided yet to hear the gay marriage case anise this is shaped to be insanely busy so we have some high-profile stuff. >> and those decisions will come down in the next of a presidential campaign. >> we covered a law of
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ground and i want to leave plenty of time for questions because we are filmed we will repeat the questions. when the is patiently waiting from earlier. >> going back to the first amendment area with that public employee speech. >> the question was about public employees' speech and the attitude toward that? >> the case is devil is been unpopular with the court remember the follow-up case where i think there was a marshal or somebody in law enforcement who was fired because when president reagan was shot he said i hope they go after him again and get him and he was fired
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but the court upheld he should not be fired for that statement to have justice scalia had the best opening line the question put the answer was yes. so there are members of the court like justice scalia are skeptical to be a relic of the 1960's and it gives the fisheye to but on the other hand, we will see if they have a consistent you over the next term. >>. >> guest: to talk about that case? >> in this case the court
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agreed to hear now for the third time is tinkering on the margins but it seems it will directly address the first amendment question if you work in the unionized shop for the government's government's, you don't have to join the union. you do have to pay fees for collective bargaining does that violate your first of a rights to be compelled to pay such fees if you don't thank you deserve more money or the government should not spend money on your pension? [laughter] i don't think it is creating collective bargaining just as if you are a non-union member you cannot be compelled to pay fees for
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political activity but the question is that negotiation feels like lobbying and stinky and does it violate first amendment rights? the consequences of a decision against such arrangements the people to opt out to take a free ride on collective bargaining would devastate public-sector unions. that is one of the case is that you talked about in your article that invited the challenge. >> and rather extraordinarily comet justice kagan defending the
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principle. >> get was funny because clearly justice alito did not have five votes and probably it was justice scalia dead he said this is a horrible decision and 70 pages you went on how horrible that was he said but today we will get rid of that on another ground and justice kagan says they could not stop saying how much they hated it but not today. >> i found it is striking in legal terms with the public seems to be regarded for instance of the public is in that fashion how they look at those standards may be
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talking about corporations provide a law you to overstate but what is the disconnect and the public perception of the court to be highly politicized? >> there are two things. one is most cases involve strictly legal questions in which smart lawyers are making inferences from legal materials and the ordinary argument doesn't look like politics but what but the case is on the front page tend to be controversial social issues and those look a little bit more like politics. the other thing we have not talked about that is distinctive with this court is this is the first court ever that is closely divided
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in which the party of the winning president perfectly predicts the ideology of the voting. stevens, warren, a brennan brennan, in one direction. but the fact a president it doesn't matter who appointed you wouldn't tell you where you are but here all our tuesday right and that can help. >> does it bother the chief justice that we try a s.g. fight that perception. >> he hates that if that would not have played a role in the affordable care act case if it had gone the other way in the election-year arturs strike down the signature of legislative achievements if that might not have affected
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the perception. >> i think that looking at the case at the time i thought they wrote perfectly respectable of opinions upholding the act that they thought were right on the commerce clause grounds so if the chief were looking for a way to uphold it was a law easier to write an opinion but is attacked. >> why would he do that? i think he was talking to to audiences at once the chief justice of polls the affordable care act the legal saudia city to the commerce clause and did what he could. >> but the fact is i do think if you are looking to do that he would have done a simpler opinion.
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and it would have been a law more plausible and there is a decent argument i am not sure what he gave anybody spin make any predictions of the supreme court? >> that was filed two days ago i've looked at the petition possibility is yes. this is a case coming out of the second court of appeals for insider-trading and they should disclose to have somebody that is affected by it so i have a particular view to take into account. for many years the southern district of new york is pushing the question and the
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question is if somebody gets a tip fundy and torrid source it is complicated by the fact there is a law of people in the chain and a certain school of view that says if you're in that calling the benefit the market. now the law says that you cannot go out and drive somebody and at the core of this case is whether if you have information on the pitch that appeared to be in a social context was not obviously a quid pro quo or a financial benefit and the person who you prosecuted
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did not know it was a financial benefit if that is enough to prosecute criminal a. in the second circuit it was viewed at the time as a change of the court's attitude providing gifts they said no the second circuit was concerned the government lost years ago because they were prosecuting somebody who benefited and the government pushes save little bit to see the relationships are a tangible benefit to put somebody away for years but it is part of the law anytime the government has the odds to be granted their for look at it very seriously.
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>> if the court takes the case can they win? >> this is one of the cases of less side is where you view the people as polluting the market antic it is hard to tell because the actual issue has the type of issues that troubles the court. and though one thing they could all agree is okay if it could be any crime to call is services ride. the position the government has to urges you have to say yes. you like them and that was the benefit.
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>> gave a delightful piece of the case although an inferior court to the second circuit was visiting as a judge on the ninth circuit and there he decided he would decide that case with odds and ordinarily supervises him. >> to be fair is overblown because he said i don't know if we agree but at the end it doesn't matter. >> we will see what happens. >> be careful what you wish for with this aspect.
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i think there is a possibility the upshot of the petition. >> i don't think that is unlikely. >> from yesterday's program? with the panelist among the judges and the advocate. >> this will help about the rhetoric on the court and also something justice stevens in his speech talked about yesterday as well.
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>> and your perception of what did his biography? to make them more quotable and a nasty stuff the better and i encourage that. [laughter] >> that sounds to me like from a fortune cookie. [laughter] >> i would rather put my head in a bag and agree with you. [laughter] >> i don't think it has changed that much but some members tend to be more caustic and that has not changed as justice scalia was happy with the rehnquist court and wrote a nasty and even o'connor when she was
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around. it is possible his dissenting opinion in same-sex marriage was a touched beyond even where he has been but not much more than a touch. and in that case it was 21 years of deep seated frustration with kennedy but i don't think it was that much more and better know there are any other members of the court who routinely engage in that rhetorical type of writing. >> i will disagree a little bit but actually the chief justice included such lines as you do we think we are? >>.
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>> if it wasn't directed at colleagues. >> and justice -- justice kagan was sharp although she doesn't write very many. >> i do agree that the marriage case was very personal and deeply wounding and the quality and the nature of the argument but the quality of the rating. >> but that was. >> host: t not the chief. >> five lawyers who think they can do whatever they want. they're colleagues. >> i not know that is saved merit of the points i think kids was perfectly civil and with that point of view but justice kagan was caustic and personal. >> as said dean who said it
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is a corrosive effect on the profession. >> possibly perpetrate think it encourages people who were not civil to each other to think it is a good thing. the one thing about justice kagan he can write prose that is entertaining where most people try to emulate him for two --. it is not helpful to the profession. >>. >> the other thing is the least surprising to read the way they handled the death penalty case it was heated or argument and the justices were giving their opinions from the bench for rye was
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sitting there one of the times that i was really uncomfortable that they seem unhappy with each other and it seems to be a person who is going to be executed because someone else is trying to ban the death penalty? those questions were shocking. if you ask what is the best for society is it to make it more he ted or tone it down with a civilized dialogue? garett do you think that disturbed the chief justice? because there was the of oral argument was the most heated i never ever heard he said we will give you more time because we took up more of your time the unusual. >> to be taught -- to be fair the day after same-sex everything that was bottled up the day before blew up
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rivage death penalty case the next day you have justice alito accusing it he did see that person who represented the inmate to be part of an organized group of the death penalty of guerrilla warfare than the other side to be outright liar. it was the worst of several decades. >> key seemed uncomfortable but also think how renquist would have handled that. >> five people coming at me at the same time it was a
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very popular decision and the old chief justice would say one at a time. he had a different manner to intervene at of the justice roberts would do that. >> he did try to control the court just like justice sotomayor likes to ask a law of questions he does give more time as a result. >> on that note we are almost out of time i have been asked to read a the following script. thinks for coming to program name. [laughter] i guess that is ted years of the roberts court please join us in the expo center one floor directly below. for further conversation
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please stop by the lounge to get a complementary head shot and chat with the team for your technology questions and sign up for a drive with tesla motors and visit with the learning lab to learn about new and exciting legal products. thanks for getting up extra early for this fabulous panel. [applause] [inaudible conversations]
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it is really not making sense. why were we held hostage?
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i didn't go >> why were we held hostage? we did not go anywhere. why were we held hostage and not allowed to rescue our people? we have proof of its. why was that the case? day you know, what i am from the '60s called the police i will stop talking when i have the messages from my community that is the only reason i am here. i did not come here to represent me i did not come here to represent dyan french cole. but those who are sitting on the street right now around a brick made fireplace because that is the only key to we have in december when the hurricane happened in august. somebody needs to hear why
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are five and a thousand people spread over 50 states is a question my neighbors want to know. >> it is not for us to say if it should be rebuilt or not. it is reasonable to ask the have a flood protection system that is going to work when you see this just a few blocks up the road with all that vacant housing you think first things first. if we get people to higher ground because that house cannot be rebuilt. that is not possible you can still smell the death smell. you will notice it later when somebody tells you that you smell bad.
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they are still finding people because they cannot go in and tell they demolish then when they tear down a house like that they bring the dogs first. this is typical a house where they would find a body still. >> in june of 1990 almost exactly 25 years ago cbs convinced us we should submit to the sec for consideration of the next generation national broadcasts standards.
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we're not quite sure we wanted to do that because we were satellite and cable god's without a law to do with the terrestrial broadcast network business but we ended up doing that all of a sudden june 1994 cover was blown what we we're doing. of first everybody said it was impossible but sure enough one year later all competitors hillary sensually following us. journal" continues. martin joins us n >> joining us now from st. louis missouri there president of the eagle forum to take over that group fisher so how'd you feel those big shoes she left behind? >> i hate to'' another woman in america but it takes a village to replace her now
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she is the chairman of the board and ceo of the organization. know when is replacing the issues for the organization to continue the work is how we look at that. >> here is a quotation from the last week tallis reaction is we are waging of war. what issues are on the front lines? to be on the republican convention since 1952 has a delicate or alternate. she has been on the platform committee most of those times and the success she would point to with her book coming out this fall is the implementation of the pro-life platform of the republican party you had books like richard nixon and
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gerald ford to say the supreme court has spoken on life and to get over it but instead she puts this sin. maybe i am hypergolic but the front lines of politics on the issues that we care about that our organization is never shy to say we're interested in the two-party system to make it a conservative party but on the other hand, we spend a law of time to educate like public schools and how they can be impacted by common core and how bad reading vetted and international affairs and military superiority not defense but a different understanding of our place in the world. in the early part of the program the organization
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talks about the role of judges and judicial supremacy we see a shift to the supreme court to change the balance of power in america. people that are feeling and seeing and addressing. >> what is your answer to that question? should the constitution be changed? >> one caller from illinois said changing the constitution at this point in history is very difficult in general they a waste of time for most of her career she has opposed the calls for constitutional convention. she believes to open it for fundamental change is a mistake and a red herring as a waste of time but would say we need people elected
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officials and judges to live up to the current constitution that has meaning with the president says he has a pen and a vote that cents a message about the executive power the previous president also had that power central. so we have to find ways to make better people be in office. >> if you want to talk to the new president of the eagle forum republicans can call. explain the name of your columns.
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>> from 1964 the book sold 3.5 million copies and in the book she chronicled her experience of the republican conventions and how she saw the king maker stick the candidates whether eisenhower over taft or 64 was written in 64 stowe let them pick but have a true conservative have launched goldwater and ronald reagan and the modern conservative movement. the new edition was published last fall that chronicles for word there is fascinating stuff in the 1980 chapter you will see kissinger was pushing rates again to have a co-president with ford and he did not do that he chose bush but that
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book is called the choice not an echo. we don't want to echo of the same old policy but church sources but in the current environment you will see a environment between conservatives and the choices. >> and howard tear navigate that primary field good morning. >> caller: i consider result they streaked philosopher this country suffers from the economic production so there is a way to know many dope addicts.
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so with the freedom of speech and freedom of religion and immigration as part of that. so there is only two candidates so far dash away dr. carson addressed the debt that was carson and trump what is the trump phenomenon? with get the country as a school yard you have the bully and a slime balls and academics and of rest of us and those of the democratic liberals then you have the establishment republicans
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who come and play with us and talk to us but they get lunch money in exchange but the others push the police away. so along comes a kid from a different school he sits there and spits in the eye and his name happens to be trump the to speak about those issues because when they claim give them to congress then they give them the senate but john boehner and mcconnell. >> host: we will let our
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guest talk about the school yard analogy. >> guest: you do sound like a real philosopher but a political correctness is a problem but the answer as ben carson said it is to speak the truth and our organization speaks the truth we still talk frequently about the imposition of the feminist movement with a book two years ago called to kill the american family? highlighting not just the left bush on marriage but what no-fault divorce has done to america and the impact. it is very important and i agree with that. and we have our annual event
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in st. louis coming up bin dr. kerr said it is our first speaker. you can go to legal and find out more. but there is the street philosopher the road to a number of books instead every great cause begins as a movement and generates into a racket. we are at that stage speaking truth to power and in many ways. to have the debate whether the suspending of the debt so the caller brings up an important point with the acquisition on china and america can sovereignty even
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with a conservative organization. . . somewhere other than the american right on that. trump is speaking to china, which is a huge threat. we applaud him for bringing those issues to the forefront. host: you bring up trump, the caller brings up trump. are the positions that he is taking that you disagree with? backsadline here -- trump abortion exceptions in case of rate, and says, lies of mother. has been confusing on that. we are seeing something from never thought we would see which is we are exposing planned parenthood anyway that people knew. and that their web site has transcripts and descriptions


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