tv Supreme Court Term Review CSPAN July 5, 2018 6:28pm-8:02pm EDT
cases. and then with the recent chicago tribune. and then to mean congressional quarterly. and then to join the washington post in 1987 with the national editor politico editor and metropolitan editor. and then saying that to my immediate right but has a longer history with the times. after graduating from college and after getting the law degree and then to become a
reporter. anyhow sitting next to me on the other side is a reporter an independent contractor and until recently an editor. and one of the two cofounders. and before turning to full-time blogging that there couldn't be more than two dozen merit cases at the supreme court. and then as a reporter and producer in politics covering the supreme court and other legal issues while reporting on supreme court cases and other legal developments. in covering for abc news going back to the bill clinton era.
and then to be represented by the empty chair at the end of the table she has been with us for many years but was called off to an urgent assignment today we can only guess what it might have to do with and cannot join us. [laughter] this isn't a panel of expert witnesses analyzing case law but the institution as a journalist. and so then to think about and where the supreme court banged her gavel to say the court was in recess the first monday of
october most of us thought the big news was finished for the term. right after that that afternoon i got an e-mail from the washington post that justice kennedy was retiring. at 2:11 p.m. from the time and 2:14 p.m. from nbc and since the post got to me first i will start with bob. [laughter] did you know this was coming? but thanks for having me. but no. and to be suspicious like everyone else and when justice kennedy retires and to edit that that morning and it did not happen while they were on
the bench. but there was a field. i was one of those who didn't think he would retire until the beginning of this week but then i could see what the court was doing by putting off cases that they would except for next term maybe they weren't sure if he would be back. and after those decisions came down i usually go back to my office and it is a weird five a lot of close doors that are not usually closed. it made me think something was up. but then fairly dramatic moment when all of a sudden and then a did you rush out of
the public information office holding these pieces of white paper and what that meant. but then the usual scramble. >> review at the court in case something happened or did you have to turn around? >> it was a dead giveaway. and then to be different members but to be up in the courtroom that kennedy was there with three of the kennedy grandchildren. but then i spent the night
before working on justice thomas there is a little bit of the neck go chamber in the press for the people that look at the pictures of him with the president and vice president to say that he is retiring instead. >> are looking for insight you're coming to the wrong place i thought we had this lunch at the end of may to say even justice kennedy said that the know he will not but then to be part of gerrymandering so i had gone back to my office i assume justice kennedy probably would not retire but then when we left the court that it was very
slim but the only good thing that i did in the last month was go up to the social events and some of those justices were there with his wife and saying a great story five or six reporters listening to him talk and i said to his wife mary i am concerned about these rumors about your husband retiring and she said he has been here for more than 30 years. i said we'd hate to see him go and she said he did 12 years on the appeals court. [laughter] so then we start talking about the grandchildren. she wants him to retire but he hasn't made the decision yet. so i went back to the office and started to write a story ready to go. i feel like i have been clueless most of the year but minus one conversation.
>> i was there. i stayed tinkering with my justice kennedy does not retire story it is said to my editor i'm not ready to push on that and also looking at the tea leaves i was about 5050 but those that did not get attention that kennedy wrote a separate opinion calling for the court to revisit something i you look at it ministry to agencies. so why does he choose this opinion to write that?
i expected this not quite as much from kennedy as much as d2. i was 5050. >> i also had pre-written story and i had seen some tv like mrs. kennedy showing up that morning and i also remembered that thurgood marshall was the final day of the term but not announced and he decided to tell his colleagues afterwords and sometime in the early afternoon i thought it was
possible the same thing would happen with justice kennedy so i had written both worries and my final sentence was the kennedy watch is not over yet so what that's worth which isn't much simply thinking it would happen. >> so justice kennedy's colleagues on the bench that morning did they keep their poker face or did they find out when you did? >> the press release said he informed his colleagues that da day. >> you had a front-page story about the white house campaign to get justice kennedy to inauguration day what it took
to put the president story together. >> that that was one of his most dearly thought wishes to arrive with a vacancy to have the opportunity to put one justice on the court was a huge achievement but it was a swap for what he really wanted to do was shift the balance of power almost from the moment he got there i know that justice kennedy was 80 at the time and they knew he was considering retirement. they did everything they could they were very smart about it. but the very fact they put justice gorsuch was a kennedy clerk so that he was put up so his legacy would be secured so
then talk of who could be nominated for the next vacancy the two names floated was cavanaugh they both had kennedy in common. donald trump praised justice kennedy falsely in various settings even after other members of the court even chief justice roberts that he called an absent disaster and there were interesting connections between the two families justice kennedy's son was a banker working with donald trump and apparently moves in same circles as donald trump's sons and even t3 showed up to the court does look like it was an effort charm justice kennedy off the court. i believe him he said he
wanted to spend more time with his family but he also didn't betray any reluctance to step down under president so a president was a little abstract or very simple loan -- and simple but hesitate and that was a well executed plan. >> you did a story left side of the role of white house counsel with the likely timetable for announcements. so tell us about that. >> not only did the conservatives have big wins coming out in this term there were dozens of cases, but
obviously a huge win for the trump administration starting with the travel ban for the president had worked on the earlier version and then there was an interesting low not a lot of people paid attention to but the nationwide injunction that is when the court block something ending one of the sanctuary city cases out of chicago the federal appeals court came back a little bit on the nationwide injunction that was a win for the trumpet ministration because they were very nervous how often these nationwide injunctions are put in place so that was a big win for the administration coming out and keep in mind that was gorsuch on the 5/4 sites are what is is interesting to look
at is again one of the earliest members of the trumpet ministration actively in the campaign decided the federalist society was a conservative group could make judges a priority the supreme court and the lower court judges and really was pushed through their working with senate majority leader and check mom -- chuck grassley pushing a number of judges through. he saw what happened you saw the travel ban in the lower courts ruling in their favor. i think they come out of this with an opportunity now, as adam said to really shift things and then to gear up with the nomination they are gearing up the white house is reassembling their team from
the gorsuch nomination are in play and they are hoping to announce the name of the next nominee as early as july 9. you don't know if that will happen but that is pretty ambitious timeline and the democrats on the other hand their worst nightmare in a lot of ways and they are gearing up themselves with a little bit of disagreement how to go out this block all hearings or look at dianne feinstein who just want to block them but they are looking at a way to combat the lift to put a focus on roe v wade and what might happen or the affordable care act and the trumpet ministration -- trump administration and some are
feeling a little flat but knowing that after the garland nomination that summer and i remember this clearly the summer before the presidential campaign i don't cover politics but i look at it to the prism of the quarter was a little surprised they were not keeping up with that drumbeat garland he was too much of a consensus candidate and now they see these opinions coming faster. and gearing up for a big fight. >> you have been on this beat long enough you covered his confirmation hearing in 1987 even the ginsberg unsuccessful nomination before that. so with that wealth of
experience what do we expect this summer? >> i do remember the conflict -- the confirmation battle as you mentioned justice kennedy's nomination was preceded by reagan nominating judge bjork that is when the nominees were quite away in the closet and not announced. that was amazing then judge ginsburg was nominated and that was a disaster also. because it turns out he smoked marijuana as a harvard law school professor and that was a no-no back then.
so when justice kennedy was nominated it was almost like anti- climax this playing guy from sacramento. as i recall, it was a fairly hearing people were exhausted and just wanted to get it over with. >> but then and now there was a big difference between certain republican nominees but bjork spent his whole life criticizing the war in court to the liberal court of the 60s and 70s and was opposed to a lot of the civil rights decisions certainly roe versus wade and a lifelong critic if he was on the supreme court that would change a lot and go back and overturn a whole series of precedents he was like a younger version of the same thing the hard edge hard
conservative let's overturn but kennedy was a very different person conservative guy coming up in the reagan administration when reagan was governor a catholic conservative but he had none of the passion that says i will come into sweep aside the 60s and 70s to overturn. he was much more a temperament of a moderate republican status quo conservative it was a great thing then and that is what we are losing the last of the moderate republicans in the great likelihood is the trump administration will not seek out a moderate republican of the anthony kennedy mold but somebody who is much more committed conservative and willing to say these decisions were wrong.
and we should get the constitution right and overturn them. i think that is where we are headed. >> and anybody has her to guess will they lose to republican votes in the senate? >> i think the interesting question is not necessarily they will nominate somebody will say that or admit that in the past this is just like to looking at is lower court opinions he hasn't written anything about abortion or the second amendment. i did a panel last fall he joined the court in april and one of the panelists said it turns out the federal assistance on -- society new him better. so when the president nominated justice gorsuch that
he said i did not call that the abomination they will put somebody else up that has confidence but it will be hard to point to something with his or her background to give democratic senators something to work with. >> anybody else on this topic? then let me ask with justice kennedy's retirement, how do how do you think he would like to be remembered as a justice? do you think that is how he will be remembered as a justice? any thoughts about that? >> i guess i don't know how he wants to be remembered we be some sort defender of liberty and dignity and civility are words that come up a lot with
them but i think what he will be known for more than anything is gay rights. he wrote every opinion every positive opinion on gay rights for the court and even by same-sex marriage. so i think his legacy is clear in that way. what is interesting about him is because he is on that side of that to but also wrote citizens united which at least in my experience talks about the least popular decision anybody ever talks to me about , he has a mixed legacy and here is an interesting thing that we expect judges to call them as they see them but yet
there is always frustration from both sides about kennedy that neither the liberals nor the conservatives could count on him and he was always in play and always the one they tried to angle for and so i guess you could say that is the lack of term philosophy or argue somebody does take it case-by-case. b make any other thoughts about that? or i can move back to more familiar territory. >> so with five consecutive workdays sales tax on internet sales and free speech pregnancy centers and for government employee unions in
the antitrust decision and how do you manage to cover all that? so do you have any backup? i do it myself. >> but usually the one big case of the day the third or fourth best cases of the day. [laughter] but the court will not admit to this but it is pretty good about spacing the cases out so you don't have to handle more than one real blockbuster per
day. >> two they do that for your benefit? [laughter] >> i want wrote to the chief justice he said aside from that i couldn't think of a reason not to do that. [laughter] >> you are our tv reporter how fast you have to get on the air when decisions come down? >> they cut us off down here. >> it depends where we are in the term. the last week we had an entire team that works on it onto a conference call so this term and thinking the last week we didn't have one of those opinions that we had before.
i can think of those vote counts but i didn't think we had one what they have done in the past with the affirmative action case that was the case about the baker that was closely tailored to the case at hand. and then to say those last couple of weeks. >> with the point she is making is good because the web is a place to file things quickly so we could do one or two versions of the story and then to take 30 seconds to say the court struck down this and
you push the button and say wait. so it is an interesting minute or two of scrambling to check the votes to check what you thought they might do then push the button. >> it is the dirty secret of our profession to write stories the buyer services used to do that all the time but the newspaper reporters where we have the opinion at 10:00 o'clock and then we could peruse them and then sometime in the afternoon write the story and that just
isn't possible now. so you have to have that within ten minutes nobody couldn't do it with less speed than that. and then there is tremendous possibility to make an error like this. you can get it wrong. sometimes a footnote on page 43 is important and you will not get to that in ten minutes. so it is just part of what we have to do now.
>> i look for examples of what they're talking about and i can usually find when every term but there was one in april and then they give a lineup so here is how it comes out which has to do with the purpose of deportation and justice kagan that justice ginsburg and gorsuch write the opinion but justice gorsuch filed an opinion and chief justice roberts and justice kennedy in the lido reviewing justice thomas but then they joined as parts one.
[laughter] that was 96 pages of opinions that came down in a little booklet. . . . . >> provision that said individualsy not license, sponsor, promote -- so they were challenging the restriction on the states, right? then the court agrees it's unconstitutional to hamper the states like that. but the government said all well and good can, but nonetheless, sports betting is still illegal because there's another provision of the law that says individuals may not do it. so i don't know about the rest of you guys, but i was worried
about writing a story that says supreme court legalizes sports betting, and then you -- oh, actually, they didn't. they only struck down -- so, anyway, i always think there's a number of land mines you're sort of worried about walking right into in the cases. >> yeah. i mean, the, our -- i don't know about the rest of you, but my pre-write sometimes for the more complicated looks like one of those choose your own adventure books we read when we were little. [laughter] you can try and game out after the oral arguments the different paths the case can take, but sometimes there's only so much you can do. for example, in the partisan gerrymandering case out of wisconsin, the idea that they might dismiss it for lack of standing wasn't a huge surprise. but the result in the maryland case was a little bit more of a surprise. and and so there's a danger that you've got this pre-write that you don't want to make that the narrative for the story. you've got to read the decision
and make sure you're actually reporting what it says and not what you thought it was going to say. >> so going back to the first case, the demaya case, already you had to look and say, well, who was where, what's the vote count. but that was interesting too because that was one of the, you know, earlier cases. and justice gorsuch sided with the liberals there. and at oral arguments, you sort of got a tea leaf about that because he like justice scalia doesn't like vagueness, particularly when it comes to criminal defendants. so you -- we sort of knew, okay, there's a good chance here that gorsuch would go with the liberals. but that wouldn't mean he was changing his jurisprudence. and, in fact, it was a move where he was following in the footsteps of justice scalia. and i wrote that, and you had to put that pretty high up because
people were thinking who is this justice gorsuch. this is his first term on the bench. is he going to be a soll conservative or not. and even -- solid conservative or not. i got a note from one of my bosses, and i don't think i had done a good enough job saying, look, what is this? he sided with the liberals. it was very interesting. there's those things, too, on deadline that you have to look for. and in that instance you could be prepared for it because you knew it might come, but just when you were talking about that case, it brought me back to that. >> so, amy, in addition to writing in-depth analysis on your own blog, you often help to co-host the live blog on scotusblog which is actually online as things are happening. and yet you can't bring a laptop or a cell phone into the courtroom. i can't even bring my apple watch into the courtroom, because they're afraid i might record something. so how do you manage to do that,
and how many people are listening in? >> yeah. so there are no electronic devices allowed in the courtroom, so you have to make a choice, are you going to go up and sit there and listen to the opinions being announced, and there's something to be said for that in addition to seeing whether mary kennedy happens to be there on the last day of the term with the three grandchildren. sometimes it can add a level of nuance in the sense of seeing how the justices react to each other while the opinion is being read from the bench. one of the most vivid memories that i have of being in the courtroom was when i was in the bar section as a lawyer back in 2003. it was the last day of the supreme court's term, and so we expected to see the decision in lawrence v. texas striking down texas' ban on consensual sex between two adults. and this was a case, because it was the last day, we knew it was coming. a lot of the lawyers in the gay rights community who'd been involved in the case were sitting there in the bar
section. and as justice kennedy is reading the announcement from the bench talking about this is a matter of fundamental human dignity, the tears are pouring down the faces of some of these lawyers. another memory was decision in a case called schutt v. coalition for affirmative action, i can't remember, bamn was the -- >> by all means necessary. >> yeah, by all means necessary. as justice sotomayor is reading her very sharply-worded dissent from the bench, you know, the other justices were visibly uncomfortable. they're sort of looking around the crown moldings, and justice kagan was recused because she'd been the solicitor general, she was the only one who looked happy to be there at the time. [laughter] so you can have, you can have that level of nuance with where you can be in the public information office. and it's quite a scene especially on big announcement, opinion announcement days
especially at the end of the term. there's kind of an unwritten protocol for who stands where as the opinions are handed out. at 10:00 when the marshal bangs her gavel, the audio comes on in the public information office. and as the chus disjoinses justice allee -- chief justice announces justice alito has our decision, they start handing out the opinions. and the folks who are really in a hurry, the wire services reporters, grab the opinions, and they turn around and they literally run out of the room. and so we all know to stand out of the way. but if you're not there on a regular basis, you don't necessarily know that. so as a young reporter who kind of got body slammed the other day --? >> someone lost their show. >> jessica of the associated press, the day that they announced the travel ban, having learned from this experience, one of the wire service reporters turned around and said to a reporter who was standing at the doorway between the
public information office and the press room, he said, you know, you probably don't want to stand there. and she laughed because she thought he was joking. and several of us said, no, really, you don't want to stand there and in the crumb that followed, somebody said, did somebody lose a shoe? [laughter] so i get the opinion, i go back to my desk in the press room and start trying to decipher it, you know? who wrote the opinion, which usually will tell you a lot, what was the vote, you know, look at the source of reversed and remanded and then try to start pulling out the money quotes from the decision. you know, some justices write, you know, sort of introdetectively a paragraphs or -- introductory paragraphs in terms this is the question, this is our answer. sometimes you really have to wade through and see what people say and then turn to the dissent. and, you know, we have had as many as a million people on the live blog back when they announced the decision in the affordable care act case. but that was really kind of a one-off. and, you know, it's usually good
numbers, but nothing anywhere close to that. >> so who's first on the line? who gets the slip opinion first? >> the wire services folks. >> and do the rest of you sort of have a regular alphabetical order or place custom, or to you elbow each other around? >> it's a little bit of a free-for-all, but the rest of us are more civilized. [laughter] >> [inaudible] >> i was going to mention, you know, one thing we've talked about is sort of the difficulty in translating a decision. often we're faced with translating something that happened that is not a decision, and we don't have much guidance on. i mentioned before when the court didn't take a couple of cases that were follow-ups, one was this case from the state of washington, arlene's flowers, where a florist is in,
basically, the same situation as the colorado baker was. she said she serves all people, but she won't do wedding flowers. and so that case had been waiting for the court to act on, and so, you know, the court could not take it and leave the -- the washington courts ruled against her. court could leave it in place, the court could accept it for next term, the court could send it back in light of their decision in masterpiece which really didn't say much at all about the facts of the case or how a lower court should now decide that case. and so they decided to send it back. of and so then -- but it's always in one sentence. there's no explanation for that. and that's where sometimes when we write about the court, we write about it in sort of a form of educated speculation. and my editors will often say to
me who said that, and i said, well, i do. [laughter] because there is no one else to say it. sometimes you have to decide some things on your own about what the court's actions might mean, and sometimes you might be wrong. >> so one reason why i like to go watch the decision days in june is because of the possibility of oral defense. and this term there were six. one by justice ginsburg, one by justice sotomayor, one by justice kagan and four by justice breyer. >> check your math. >> check my math. okay, my math is wrong. and so by my count, which i may be wrong, i think that's the most since the 2012 term. last couple of years there were only two or three. is this, do you think, random variation, or is there some other explanation? how much does the fact that a justice chooses to do an oral dissent affect your reporting of the case? >> so i'd first like to make the
point that three plus four is seven. [laughter] >> that's why i'm a lawyer. [laughter] >> i think it's -- >> what a know it all. [laughter] >> i think it's a consequence of a fantastic rout on the left. the left lost and lost and lost and lost, and what could they do? they dissented from the bench. and it's an unusually high number. i think most of us note and used some formula like in a sign of profound disagreement, justice breyer as he did yesterday and the day before, you know, dissented from the bench. but do any of us -- none of us go upstairs anymore. we don't, we're not able to convey that visceral drama. some of us on the final days of the term had colleagues in the court. justice sotomayor's oral dissent from the bench, apparently, was very, very striking. >> well, i wasn't -- oh.
[inaudible conversations] >> let me help cnn with technology. [laughter] >> so i wasn't up in the courtroom and, gosh, i wish i were. joan, who's our amazing colleague, my colleague at cnn, she was up there. i didn't have to be up there to hear the pip. ed tone of -- pinched tone of elena kagan on that unions case. wow. i mean, it was -- because she is, she was mad. and that really struck me just eneven -- i didn't even have to see it, i heard it coming in through the audio. >> the scene that you all missed that you really couldn't hear was the day that the amex antitrust came down, and the court marshal didn't realize that justice breyer was going to do an oral dissent, and she banged the gavel and started to say the court is adjourned until tomorrow. and justice breyer was, you know, adjusting his microphone,
so the chief had to sort of stand up and wave everybody to sit back down, and everybody was laughing. and justice breyer started out with a big grin saying, well, you know, i realize it's only an antitrust case, but some of us think it's important. [laughter] and justice thomas, who'd just delivered the majority opinion who sits next to him, had this enormous smile on his face and was, you know, laughing at justice breyer's little joke. but really making a show of good cheer all around on the bench. and then breyer delivers an opinion basically saying that thomas, you know, had swallowed the snake oil that these amex lawyers were selling. >> [inaudible] antitrust law professor. but the reaction in the press room when we realized that justice breyer was reading a dissent from the bench on an antitrust case, you've got to be kidding me. [laughter] >> so people often say that the whole court really changes with every change of personnel on the
bench. is that consistent with your observation? and if so, how has the court changed with the arrival of a new justice this last year and a half? or is it just that there's a new justice in. >> i mean, justice scalia was either credited or blamed depending on your perspective for the hot bench, the idea that the questions come fast and furious. if you go back and listen, for example, when justice ginsburg was an advocate before the court, and she gets to talk for ten minutes straight without interruption. and so i think probably a little bit -- a lot of the lawyers are a little bit justice. so replacing justice scalia with justice gorsuch, on one hand, he's a little quieter. during the janus case, he did not ask any questions at all. he can be sometimes a fairly active questioner, sometimes relatively quiet. but i think on that quieter than scalia. the one thing that justice
gorsuch seems to do is he will really press a point in the way that some of his colleagues don't. and he could be trying to make the point with the lawyer, trying to get the lawyer to concede something. and i'm thinking here about colloquy he had with the deputy solicitor general in the cell phone privacy case, trying to get, trying to press the point that carpenter, the criminal defendant can, had a property interest in the cell phone records that his service provider had. and if you've ever seen michael dreeben argue, you know that he is incredibly well prepared, and there was no way that justice gorsuch was going to get michael dreeben to back down. but the oh thing that could be going on -- the other thing that could be going on, he had some unique views on the law. and i've heard justice kagan talk about this when she was the junior justice. at the conferences they go around the table and vote, and as the junior justice, he's the last justice who gets to vote. so to a certain extent, this is his way to talk to his
colleagues. so he has some unique views on the law that he'll press at some length. but, you know, i think there are probably a couple of different motivations going on. >> so, adam, you wrote the other day that justice gorsuch had turned in the most consequential freshman performance by a member of the supreme court in living memory. how so? >> that's a good sentence. [laughter] well, we talked about the one case, demaya, in which he joined the liberals. in 14 others he provided the decisive vote going the other way. it's a fair bet that in every single one of them justice merrick garland would have gone the other way. so the raw numbers, the raw power prove it. he was also, not withstanding some reports of friction with other countries, entrusted with very big cases. the workplace arbitration case epic, junior justices wait years to get a decent assignment.
so chief justice roberts trusted him to turn in a sophisticated and sound opinion that would keep the five conservative votes. and then he also hit the bench with a lot of self-confidence. and as amy was saying, he has a lot of well-formed idiosyncratic views. he's writing a lot. it's got to be the reason why in issuing only 59 signed decisions in argued cases, the lowest number since the civil war or something, they nonetheless took forever to get them out. and that was in large part because there was a lot of separate writing, and a lot of that was attributable to justice gorsuch. >> just a minor data point to add to what adam said, you know, he had the epic case which was a second sitting as a justice, there were 15 5-4 decisions, and he wrote the opinion in fully a third, in five of them. >> and along the lines of how many 5-4 decisions there were, this term the court -- last
term, a year ago, the court was man now more than 57% of the -- unanimous more than 57% of the time. this term they were unanimous only 34% of the time, quite quite a dramatic change. and with relatively few exceptions, the big 5-4 decisions this term split along party lines; that is, the party of the president whod had nominated the justice. the travel ban, the pregnancy clinic, the union dues, voter registration, the employment arbitration case that adam just mentioned. is the court becoming as politically fractured as the rest of washington, or are they really just individuals calling them as they see them? >> yes, to the first. they're becoming as fractured as washington. a lot of the cases they took this term that caused this big fight were they took conservative challenges to laws in liberal states. the janus case, for example, said something hike 22 states -- democratic-leaning states --
have these laws that allow for agency fees. the other state, 28 states, have right to work laws. the supreme court took up a first amendment challenge to the democratic state laws and overturned them on a 5-4 vote. the five republicans voting to overturn the democratic law, the four dissenters. the masterpiece cake shop case was a sort of religious liberty challenge to something like 20, 21 states have states' civil rights laws that say if you run a business, you must provide full and equal service for all customers including gays and lesbians. mississippi doesn't have that kind of law. texas doesn't have that law. but california, the northeast states, the west coast states, illinois has that kind of law, so they're taking a first amendment challenge to take a cut out of a democratic state's law. and there's quite a few cases, the nifla case is a california law that says, you know, these crisis pregnancy centers have to put up a little notification
whether you do or don't have licensed people on staff. they struck that down. that you can't tell people that you do or do not have licensed medical professionals on staff? that was a first amendment violation. so i think part of the real divide this term was the cases they took up, and it split very much -- they had the voter purge case from ohio. ohio is a fairly aggressive move to remove voters from the rolls. guess what the vote was. i mean, everybody would have known before that case was even argued. you'd think, oh, i follow this very, you know, from a distance. i would predict the five republican appointees or conservatives will see it one way -- the it's a fairly complicated statute -- and the four democratic appointees will see it the other way. and you would have been right. so that's -- i think a lot of that's what's going on this year. >> i think that's right, and i
think the 2016-2017 term may not be the best one to use as a point of comparison, because for most of that term they only had eight justices. to a a lot of their -- so a lot of their decisions were let's get along. and the cases they would have been hearing were cases that they'd agreed to review when there may have been some uncertainty about when they were going to get a new justice and who that justice might be. i mean, in the weeks and months after justice scalia's death in february 2016, you know, they were not taking much in the way of cases in the ones that they took. they were pretty uncontroversial. >> i thought though do. [inaudible] >> i thought that there were some examples or i can think of one at least where i think that they sort of put aside their differences a little bit on the
partisan gerrymandering case, for instance. where the kagan joined with the rest to say that, you know, this case needed to go back for more work. but then she used that to write a very, very long concurring opinion that basically laid out how you could bring a successful case against partisan gerrymandering, made the case against partisan gerrymandering in that opinion. and i think it end ebbed up sort of being -- ended up sort of being more effective by doing it that way than it would have been if she had done it as a dissent. so i think sometimes they're strategic about those kind of things. >> i think bob's quite right. and the decision was unanimous. but that's a little misleading because it was clear they were four votes. kagan represented four votes for
people ready to do something on partisan gerrymander, and had garland been on the court, there would have been five votes to do that. >> i don't think it's necessarily right on friday if it was right on monday. you know what i mean? in other words, when that opinion -- >> about to be right for four days is pretty good. [laughter] >> i think bob was correct to say that the day that opinion came out, elena kagan was saying, okay, we passed on this case because of standing grounds, but there's still a good argument for here's how we go forward on partisan gerrymander anything the next days. well, that's not going to happen. that's basically finish the trump appointee is not going to be a fifth vote to strike down partisan gerrymandering. john roberts thinks this is -- it's inherently political. there's no way to say it's too political. it's political, we should stay out of it, and that's what's going to happen. there's not going to be a 5-4 decision striking down partisan
gerrymandering. >> i'm not completely sure this is apropos, but somebody talked about how sharp justice kagan's dissent was in janus, and i think she feels very strongly about the union fees. but a lot of what was going on in janus i have to assume is also a battle over stare decisis, the idea that courts should not lightly overturn precedent just because they think it was wrong. i think we're going to be hearing a lot about starry desai us in the next -- stare decisis, roe v. wade, just to give you one small example. >> and on that note of starry desai us which means a lot to us and maybe not the general public, you look at she bent hard on that issue. why are we overturning precedent here? why would we do that? and then it's interesting because in the travel ban case justice sonia sotomayor brought
up korematsu and tried to make the link. and the chief refers to that and says that's not fair. this has nothing to do with corps mat sue. and then to me, a little bit out of nowhere, he overrules it. and so it was -- you felt at one side, i felt like kagan was talking to the chief in that separate case, and then you had that tension between sotomayor and the chief. that was very interesting about starry desigh us. >> does anybody think that the chief's paragraph about korematsu was written after he read a draft of the dissent? >> yeah. >> of course. [laughter] >> he said so. >> did he. >> well, no, he didn't say so. but he said as -- and he refers to the dissent. >> yeah. so another thing that was quite unusual this term was that the united states changed its position in four important cases; the one involving
employee arbitration, the voting rights case from ohio, the union dues case and a case about whether administrative law judges of the sec are officers of the united states who have to be appointed by the head of the agency. did this annoy the court? and if it annoyed them, did it annoy them to make any difference? >> it certainly, certainly didn't annoy them enough to make any difference or because they won all the cases. and, you know, it was interesting, this used to be something that the chief justice was very tough on the solicitor general's office during the previous -- [inaudible conversations] during the previous administration. still not working. >> lost all communication. >> anyway -- [laughter]
and he did not bring it up very much this term when the, when the other side was, now that the tables have been turned a bit on that, justice sotomayor at one point did call out the solicitor general and said, you know, by the way, how many times have you changed your position this term. and he said three. i think it was actually four. but, you know, it's not surprising that a conservative administration changes its position to a conservative position and then has it upheld by a conservative court. >> i mean, i don't really think the court could get that upset, at least the majority in janus. if the obama administration's position in january pus was -- janus was based on this 1977 decision that the majority then overruled. so if the s.c.'s office is going to say that awide is wrong --
iowa wide is wrong, who are they to disagree? >> but elena kagan, we covered an event that she gave, a talk, i think it was with paul yesment. and so she was -- elena kagan, of course, coming from the solicitor general's office gives a talk with another former solicitor general. and i think it was before this came out. and she talked about how serious it was to flip a position. and her tone was like, it's a big deal. so i thought that was interesting, a little tea leaf. >> part of what, part and parcel of what's going on in washington where all the sort of norms of behavior are sort of shifting, right? people say, well, we never did it that way, or you're not supposed to do it that way. nobody says you can't do it that way. so it just becomes more partisan. >> so in addition -- hello? in addition to --
[laughter] in addition to -- [laughter] reporting on decisions, you also cover oral arguments, and you can be upstairs on days when they're not handing down decisions. were there any highlights this term in the oral arguments, any that you think might have actually changed the outcome? any takers? tony? >> well, there was -- i don't know if it changed the outcome, but there was one rather interesting one where justice, chief justice roberts really got angry primarily at justice breyer, but just in general on principles of how cases are supposed to be argued. it was a case the city of hays versus -- [inaudible] which was a criminal case. justice breyer was asking the
lawyer about some factual information about the case, and the lawyer said this isn't in the record, but -- and he was starting to answer the question. and roberts said, now wait a second, if it's not in the record, you know, what you're about to tell us could be just as much, just the same as if somebody came in off the street and told us this is what happened. and it was really kind of tense. and the poor, the lawyer who coped with it very well, didn't know quite what to do, and justice breyer said you don't have to answer that question. presumably because chief justice roberts was so angry. but roberts said, oh, go -- you can answer the question, but just take notice i'm not going to take any, i'm not going to give any credence to what she's
going to say because it's not in the record. it's kind of -- it doesn't sound like an issue to get really angry about, but that's the kind of thing that chief justice roberts really feels strongly about. and so anyway, the case was dismissed as improperly granted. and the lawyer for the defendant who had dealt with this, with the chief justice's anger, she won. because it was the lower case, the lower court case was upheld. >> i think this was also a case in which people came back down and wrote about the oral argument, but everyone also went online to find examples in which all of the, basically all of the justices had gone online and done their own research in various cases and cited to it in their opinions. and there were plenty of, there was plenty of fodder. >> and it's sort of a position
to take that, please, don't refer to extra record. the amicus briefs are full of them, and they're routinely cited. [laughter] >> i was curious what some of my colleagues think about this. one of the interesting phenomenons you see in the court if you watch is that sonia sotomayor talks a lot in the argument. justice breyer is the other one who about halfway through says, i'm a little confused as to what this is about. and he sort of talks for a while, doesn't actually ask a question. [laughter] justice sotomayor talks a lot, and sometimes when she doesn't, you know, it's a conservative side or whatever, she will keep talking and basically the counsel starts to answer, and she'll talk right over him and keep talking and keep talking. and she had some of those really long dissents at the end. she seems to be speaking to the wider world sort of getting a message out to the wider world. it doesn't look very effective insides the court.
inside the court. because you can see kennedy and roberts will sit back and, you know, robs, i think -- roberts, i think, is tempted to interrupt her. come on, everybody should ask questions and give the -- and she's sort of filibustering. and i'm curious what the rest of you think about -- she is playing a different game than a lot of the other justices at oral arguments. >> i think you're right, dave, and i think it's also true of her dissents which really play to the progressive crowd, and she gets very good feedback from her crowd about it. but it's not clear how effective as a matter of legal strategy and jurisprudence it is whereas elena kagan, who is not very far from sotomayor ideologically plays a much more tactical and strategic game. >> i think you saw this in the trump v. hawaii dissent. there were two, you know, there's sort of two factions within the more liberal justices on the court. you've got breyer and kagan who are the more pragmatic and
breyer wrote the dissent that kagan joined that talked about, well, the majority relies on this exemption and waiver provision, but we're not sure how effective -- whether that's actually an option for people who are trying to come to the united states. and it was the sotomayor/ginsburg dissent that that really was strong talking about this is a muslim ban. >> the travel ban argument was actually my favorite moment where chief justice breyer, when an advocate gets too many questions, tries to give a little extra time. so chief justice breyer did -- >> [inaudible] >> i just stated -- chief justice roberts tries to give extra time to an advocate who's gotten -- >> is so the s.g. gets extra time, and neal katyal gets up and gives a really good argument. just as your red light is going to come on, you come to your closing statement and land it like you're a figure skater, and
he does it. and then the chief justice says, you can have five more minutes. [laughter] >> i'd forgotten that. >> so scotusblog compiles a fabulous, they call it a staff pack, a bunch of statistics at the end of every term. and looking at the one for this term, total questions per argument this term, 124 average total questions per argument. that's two per minute in a 60-minute argument. how can anybody answer a question? >> amy's the only one who's done an argument at the supreme court. >> i mean, there's a classic example when e was teaching that i used to use talking about oral argument. somebody got up, the respondent side. so he said, you know, began with a traditional, mr. chief justice and may it please the court, and then he got out the word "the" before justice sotomayor asked him the first question. and i think that's why the lawyers like michael dreeben and paul clement are so -- the claws who argue regularly before the
court are so good. because they manage to answer the justices' questions, and we then -- weave in their arguments. and if you're to going second, to try and address what the other justices have asked during your opponent's arguments. >> you know, you can sort of tell when somebody is a newcomer, because they'll give an opening sentence or two, and they'll say, your honors, i have three points to make. as soon as they make one, for the next 15 minutes they never -- and sometimes justice kennedy would say could you get to that second point now? the idea that you're going to get to three points, no, that's not going to happen. >> it really is an amazing talent. there's a fellow named tom goldstein who has that talent that you didn't mention. but i remember there was a time when seth waxman was giving an argument, and three justices
asked him questions at the same time. and he just sort of stood back and said, whoa. and then he answered each question in order like it was, you know, the easiest thing in the world. and tom does that as well. and i just, i just think sometimes that, you know, i would have fainted if somebody had done something like -- [laughter] and actually some lawyers have fainted through history during oral argument. it's just an amazing, an amazing skill. >> there's -- i don't know if it's true, but there's a story about one lawyer who argues regularly before the court that he practiceds, you know, if you end your sentence and you pause and the justices -- that's an opening for the justice to ask you a question, that he practices pausing in the middle of the sentence so as not to give them the opportunity to jump in. >> one thing there's discussion, we have a lot of complaints, but
the quality of the advocacy of the court both written and oral is just fantastic. and the question is fascinating, the justices are very able public servants, they're not typical of washington public servants these days, and it's a real pleasure to cover iit. >> so another statistic that caught my eye in the scotusblog stat pack was they keep track of who asks the first question at oral argument and how often. and i thought it was remarkable. the first questioner this term, justice ginsburg, 54% of the arguments she was the first questioner, and justice sotomayor, 17 president. so between the two of them, 71% of the time one of them was asking the first question, and that turns out to be pretty consistent going back. last term the two of them 52% of the time asked the first question. the term before that, 61% of the time. and then the two terms before that in the same range.
and i hadn't noticed that watching it. is that, is that an obvious phenomenon that you've all seen that i just wasn't aware of? and is there some reason why they feel the need to be the first one out of the box so often? >> i get the impression justice ginsburg always comes to the argument there's a couple things about the case she wants to get clear right away. and so she asks right away. you know, she's always got something she's unclear about, and it's not a part of the argument. she's basically saying before we get into this, does this mean, you know, and she wants something to be clarified. right at the start. >> especially if it has something to do with procedure. she's the court's civil procedure maven. so if there's some sort of potential flaw that might keep the court from getting to the merits, she's the one who's going to identify it first. >> there was a study that, and it's a little controversial, but there's a study that says the female justices are much more
apt to be interrupted, so maybe they want to go first to fore stall that. >> so we're going to try to get to questions in a few minutes, so you can be thinking of your questions. i wanted to ask tony, you wrote a piece last week pointing out the court's precure yam opinion in the maryland gerrymandering case. the court basically said we're not ready to think about this case. and so it did nothing to resolve the gerrymandering issue. but you pointed out that it did something else useful, it reminded practitioners and others that in-chambers opinions still matter. what are in-chambers opinions, and why do they still matter? >> well, i like to write about the dusty corners of supreme court practice, and that's one of the dustiest ones. in-chambers telephones are -- opinions are opinions written by a single justice for the court. and it comes up when lawyers have a stay they want or
extension of time. they'll petition the justices from who all receives the circuit from where the case comes from. and it used to be, to happen all the time where the justice would hear the, that lawyer's argument in chambers or by brief, and he would just, he or she would come up with a short opinion and resolve the case. now those sorts of petitions are usually handed over to the entire court. there are very few in-chambers opinions that occur now. but there is a rich history of this, including this great story that in 1970 lawyers wanted an
in-chambers opinion from justice william o. douglas, except he wasn't in chambers. he was out in the woods in washington state. so they trekked out to the justice, made their case in person to justice douglas, and he listened and he said, and he pointed to a stump, a tree stump and said, come back tomorrow, my opinion will be on this tree stump. [laughter] so sure enough, they came out, and he did issue an opinion denying what they wanted him to do. [laughter] but anyway, the reason is this came up is because that case, the maryland gerrymandering case, had to do with a preliminary injunction and the fact that it had been filed, like are, six years after the redistricting map had been established. so there really isn't much precedent on that.
but the court cited in-chambers opinions from justice marshall and justice kennedy. and so anyway, it was just, it's a little historical note. you can read all about it at green bag, the law review. they have taken over the gathering of in-chambers opinions and publication of in-chambers opinions. so that's it. laugh -- [laughter] >> so assuming my mic is working, how are we going to handle the questions? are we going to give one of our mics to the floor? >> [inaudible] [laughter] >> [inaudible] >> okay. so if someone has a question, why don't they raise their question, yes, sir, and i'll repeat it. >> i heard alan dershowitz interviewed on npr the other day, and he said that he wouldn't be surprised if ruth
ginsburg resigned because what has been 5-4 decisions are about to become 6-3. what does the panel think about that? >> so the question is alan dershowitz speculated that ruth bader ginsburg might resign first because 5-4 decisions are about to come 6-3. >> the chances of ruth bader ginsburg giving donald trump the opportunity the fill her seat are zero. [laughter] [applause] >> is that a consensus? >> i think so. [laughter] i think that's, i think that's why justice ginsburg's trainer is regarded to many people as the most important person in america. [laughter] and it calls to mind what thurgood marshall used to say, you know? when people wanted him to retire, he would say just prop me up and keep on voting.
>> yes. >> every court rules on aspects of presidential power. this next court in the next couple of terms is going to rule on very intensely personal business conduct and other conduct of a president that's going to appoint the next justice in a way that is more personal -- that talks about more personal behavior than official conduct and how the president's personal behavior and business conduct and campaign behavior interacts with his official role. and do you see that shaping the nomination side in terms of democrats bringing up the conflict of interest issue that's perhaps a little bit different maybe perhaps than, you know, a nixonian type of behavior that we've seen in the last -- it's going to be a different nomination site and also how do you, so how do you see that shaping the nomination site and your experience in coverage. >> so the question for people who might not have been able to hear down here is do we think, does the panel think that the
nomination process is going to be changed in some way by the possibility that whoever justice, whatever justice president trump now appoints may be sitting in judgment on questions involving president trump's personal behavior. anybody? >> i mean, it's a fairly abstract -- i mean, i'm not a political reporter at all. i'm a retired lawyer. it's a fairly abstract question to try to sell to the democratic base, i think. to try to get -- i think if they're trying to come up with a winning strategy, i think roe v. wade is probably just going to be a much more compelling argument for the democratic base just in terms of its simplicity. >> the new opening -- with the new opening, do you see the court changing the 5-4 decisions that kennedy did to actually change starry desai us, and in -- starry desai us, and in
which cases do you see that happening? >> i think that was the change. >> more on the 5-4 decisions that kennedy was a proponent of, are they going to -- with the so-call 6-3 coming in, will that, is the court willing to change stare decisis with those 6-3s? >> well, there's, there's a lot the court can do before it, i mean, the court could look at something like roe v. wade and not overturn it, but really hamper it, cut back. and there might be an appetited to do that. so you wouldn't see, for instance, it being overturned. but at the end of the day, you'd see it being very weakened. that could be sort of an intermediate step that they could take in a case like that or with kennedy's legacy. it's interesting though, if you look back at sandra day o'connor, and she saw her legacy
cut back a great deal, and you wonder to be anthony kennedy next year and to sort of see what happens. it'll be fascinating to get his perspective on that. >> i would not be surprised to see affirmative action overturned by a new court. it's sort of hanging barely there anyway. justice kennedy's embrace of the university of texas' plan was so limited, i don't think a conservative majority would have qualms about overturning that. >> you look back at justice o'connor's opinion in the grutter case, the michigan affirmative action case, and she essentially said a 25-year life span for that. and that was in 2003. that was 15 years ago. >> so chief justice roberts has been considered by a few news
articles to be the new swing vote with justice kennedy's retirement. considering that he is an institutionalist but does value the perception of court and the damage he views done by 5-4 decisions, do you think he might moderate over the years? >> so does the panel think chief justice roberts might moderate his views in order to avoid, in order to bolster the court's institutional reputation. that's -- i'm not sure that's a great summary, but it'll do. >> you're quite right, he is an institutionalist, he cares about the rest teej and authority -- prestige and the authority of the court. he's also not particularly old. what is he, 62? but he's a conservative. he's going to move the court to the right. >> another question, actually. with respect to touching upon what roberts said earlier about the civility espoused or contained in the positions by justice kennedy, what do you see from the last term? did you notice that he was kind of deviating from that? because i read articles about
that, especially with the ban case. even others that preceded that, there was less of a focus on civility and dig any and more just deciding -- dignity and just deciding with the right. that was really interesting. >> well, i've read several times and i'll read many more times his concurrence in the travel ban case. because i'm not exactly sure what the message was that he was trying to send there. but i think it was, he was getting at that sort of. i think he was saying, look, the president has broad powers here. but presidents have to follow constitution. and -- follow the constitution. and i think, others may have understood it better than i did, but that's sort of where i'm going there. maybe that was the message he was trying to send. >> we've had all male questioners so far. there are we go. >> [inaudible] in light of the court --
[inaudible] and going forward a more conservative court, where to you see the court going in terms of the administrative state and curtail thing the administrative state. and i'm curious specifically where you see substantial curtailment coming. >> so where is the court going in terms of curtailing the administrative state. david? >> you certainly right -- you're certainly right, they're going to curtail the administrative state. they seem to want -- this chevron doctrine has gotten a big -- and i assume they will write some decision in the next year or so that basically overturns cheing ron. that sort of power to judges rather than agency executives. i remember back in the '70s when scalia likes chevron, it was the idea that president reagan was in charge, his people were at the epa making the environmental rules. we don't want judges to decide all these things, you should defer to the executive agencies. but the right has really changed on that particularly when obama was president. they didn't like deferring to the obama administration, so now
they're back to saying we should let judges, judges should decide this, not agency bure -- bureaucrats. so i think that's one. the other one is this lucia case that was decided, the sec? i thought the trump administration's briefs were really interesting on that. they want to push the idea that these people are presidential appointees subject to removal by the president. no sort offed good cause. we don't want judges or who are just there on merit. they wanted the court to say that they're subject to removal at the political -- and i wrote, you know, there's sort of one officer that we all know of who is in that situation, a guy named mueller, who is appointed under a regulation that has a good the cause removal. so i think that's another area there's going to be -- they decided that case very narrowly, but i think they're going to push on the idea of saying we want more political control and
political accountability in the agencies. >> [inaudible] justice breyer wrote in -- [inaudible] denial in a series of death penalty cases. and i wonder if you could provide some insight about that process and the process of granting or denying cert and any thoughts about that particular, those particular comments by justice breyer. >> so a question about justices who publish denials, i'm sorry, dissents from denial of certiorari, what person does that serve and especially some dissents by justice breyer in death penalty cases. >> so very often the denial is an attempt -- sometimes they're circulated internally to try to persuade people to change their votes. when that a doesn't happen, it's up an attempt to tell litigants, bring us another case like this, we're interested. the death penalty cases, though, are a special case. they're an artifact of a dissent from a couple of years ago where
jus kiss -- justice breyer or thought maybe he could get the court to reconsider once and for all the constitutionality of the death penalty. that was a lost cause even with kennedy on the court and now, you know, you could -- he can write as many dissents from denial as he wants, and this court is not going to overturn the death penalty. >> i was going to say too sometimes you see these, especially in the death penalty, these dissents from denials by sort of a rotating cast of the liberals. and sometimes you think, well, why did one liberal, you know, join this one but not join this one, you know? it takes four to grant cert. and i think they don't want to say we could actually taking this case because we know how it's going to turn out, but it is a good way to sort of send a message out about what they're upset about and, as adam said,
maybe hope for a better case or one that would give them a better chance. >> before you answer another question, it's really to hear a lot of what you're saying in the corner here, and they're asking questions, and i'm sure you're making great points. can you project a little more so that the whole room can hear? >> we will try. we've got time for one more. [laughter] >> mr. liptak, i'm glad to see that you have a sense of humor. i had someone send me an e-mail this morning saying who is adam liptak, and is he credible? [laughter] >> i take that one? [laughter] >> so i wrote him back and said he's linda greenhouse's successor. >> well, that's no answer. [laughter] >> absolutely. but i thought that would put him off long enough to read your article. the day began with -- [inaudible] justice ginsburg -- [inaudible] she wanted to present the court in a nonpolitical fashion.
and as you pointed out, mr. savage, by friday we have things very different. that was one very well-researched article. it's also a scary one. when you were writing it, the exchange between trump, for example, and kennedy with reference to his son about the banking interests, about the charting of the kennedy clerk -- >> we really need you to ask the question. it's 2:00. >> okay. so i'm curious your reaction in writing the article how it makes you feel about the court. >> i actually don't think there's -- so the question is there's -- we talked about this at the beginning, about whether the trump administration's attempts to get kennedy off the court, do they like shake my confidence in reality in the political system and democracy. no. i think it's quite routine. i think it happens all the time. presidents try really hard to usher people off the court. the fact that justice kennedy's son had business dealings with president trump, i don't know that that by itself tells you
anything. i mean, it's worth knowing, but the kennedy kids are successful, middle-aged men who have gone on to have careers, and it's not unusual in new york that people should have business dealings with each other. so i'm glad you stood up for my credibility. [laughter] but i don't know that there's anything particularly unusual about this. lbj, you know, was much more activist in trying to get people off the supreme court. >> so we've come to the end of our time. apologies to everyone who was not able to hear everything. you can watch it on c-span, they'll be rebroadcasting it tonight and tomorrow. and you can come back next year when we promise to have a working sound system. thank you all very much. [applause] [inaudible conversations]
[inaudible conversations] >> justice anthony kennedy's retirement brings a significant change to the supreme court. follow the story on c-span from president trump nominating a replacement, the senate confirmation hearings to the swearing in, all on c-span, c-span.org or listen on the free c-span radio app. >> sunday night on q&a,
freelance journalist tom dunking on his washington post magazine article "locked and loaded for the lord" on the sons of the late reverend sun young moon and their church in newfoundland, pennsylvania. >> what is going on at sanctuary church up in pennsylvania is a commingling of a lot of undercurrents in the country, of religion, politics and guns. to a degree we haven't enseen before. -- we haven't seen before. it's still a small church, there's no question about that. sean has a worldwide following, my guess would be maybe 200 people in the congregation total up in pennsylvania and 500, 1,000, 2,000 worldwide. because in these days you can follow a church on youtube. all the sermons are webcast every week. but it's that commingling of
passion in america and what does this say about us as a culture and what, is in any -- is in any per cursor of what we might see down the road. when you get the genie out of the bottle of mixing guns and religion, in almost any society it's usually been problematic. >> sunday night at eight eastern on c-span's q and a. ..