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tv   Supreme Court Term Review  CSPAN  July 1, 2018 4:04pm-5:37pm EDT

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television companies. we continue to bring unfiltered coverage of congress, the supreme court and public policy event in washington dc and around the country. c-span is brought to you by your cable or satellite provider. now a look at the supreme court as most recent term. potentiald about the impact of justice anthony kennedy retiring. this runs an hour and a half. >> although you guys have bios of our speakers on your table, for the people were watching us on c-span, thank you to c-span for covering us, i will do a short introduction. in order of how they have been covering the court, on my part right, tony morrow.
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>> this is the author. bob on the other and joined the washington post in 1987. this returned to reporting in 2005 and began covering the court in 2006. at him attack on my immediate method over the new york times be 11 years ago but has a longer history with the times which a person joined as a copy boy in
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1984 after graduating from college and then after getting his law degree returns as a lawyer in the times legal department. a decade after that he became a reporter covering legal issues. sitting next to me on the other side is a reporter and independent contractor and until recently with its editors, my microphone has gone off. before returning to full-time blogging, she served as counsel in more than two dozen merits cases at the supreme court and argued that a couple of times. between him and bob is a report and producer for cnn politics covering the supreme court and other legal issues.
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coveredoining cnn, she going backr abc news to the bill clinton era. unfortunately, joan who is on your program is represented by the andy chair at the end of the table. she has been with us for many years but she was called off to an urgent assignment. we can only guess what it may have to do. this is not a panel of expert lawyers, most of them are analyzing case law. our plan is to talk about the court as an institution and about what it is like to cover the court as journalists. we plan to save some time for questions. you may be thinking about good questions and they ready for
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them. pamela thanked her on wednesday morning and said the court was in recess until the first monday in october, most of us thought the big news from the court was finished. at 206, i got a post that justice kennedy was retiring. >> thank you for having me. did i know it was coming? we were all suspicious. like everyone else we thought there was a chance, i think we
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had over this story that said justice kennedy retires and had it edited that morning. then it did not happen while they were on the bench. there was a feel. i was one of the ones that didn't take it was going to retire until the beginning of the week. that maybeo think they were not sure if justice kennedy would be back and so, we after then high alert decisions came down. i usually go back to my office to -- after writing the first version of things. but there was a weird by. there were a lot of closed doors that were not usually closed. it made me think something was up and then it was fairly
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all of a sudden, a started rushing out of the public information office holding these pieces of white paper and we all knew exactly what that meant. that is how we found out about it. it was the usual scramble to get on the rule -- on the line. >> did someone have to turn around on the bay bridge? >> i had gone home. i think following up on what bob said, we should have had a dead giveaway. we will talk a little bit about the process in which the court announces the decision and were different members of the press are. some of the reporters that had been up in the courtroom came down and said that mrs. kennedy
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was there along with three of the kennedy grandchildren. i think it should have been a sign. my kennedy retirement is ready to go. i spent the night before working on my justice thomas -- it was a bit of an chamber in the spring court press corps. people have looked at the pictures of him with the president and the vice president and said that is it, he is retiring instead. >> if you people are here for inside, i think you come to the wrong place. if we had his lunch at the end of may and someone said do you think justice kennedy will retire a lot of us would have said there is a lot of rumors to that effect. thisso would have told you would have been partisan gerrymandering. neither of which turned out to be correct. andd gone back to my office
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i thought i was doing a term and of the story. i send justice kennedy was not going to retire. when we left the court i thought the chances were very slim. the only good thing i did in the one ofnth was go up to the social events where they invite some of us upstairs and some of the justices were milling around and talking. there were five or six reporters listening to them talk. i went to talk to mary. allid i am concerned about of these rumors about your husband retiring. she said you know he has been here for more than 30 years. he did 12 years on the appeals court. then we started talking about the grandchildren and she wants him to retire. she said he hasn't made the decision yet. and so i went back to the office
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and immediately started writing a story to be ready to go. so as i say, i feel i have been clueless most of the year, but fortunately i was saved by that one conversation. arianne: i was there. i stayed and i was tinkering with my justice kennedy doesn't retire story. [laughter] and playing around with that lead. i said to my editor, you know? i'm not ready for that. to push on that. i guess we all sort of looked at tea leaves every time the opinion came out, what do you think, i was about 50-50. i was interested in a little tea leaf that did not get attention. there was one case i wasn't paying attention to and kennedy wrote the separate opinion in it. he was calling for the court to
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revisit something called chevron, which happens to be how you look at administrative agencies, and it was interesting to me wisely choosing this opinion to write that. is he trying to tie a lot of those around it and why this opinion and something that i would expect something more from gorsuch then kennedy, but i had both stories ready to go. i was 50-50. arthur: tony? tony: i also had a prewritten story, and also i'd seen some tea leaves like mrs. kennedy showing up at the court that morning. and i also remembered thurgood marshall, when he retired that it was the final day of the
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term, but he was not announced during the session of the court. he decided to tell his colleagues afterwards. and some time in the early afternoon was when the announcement came out. i thought it was possible the same thing would happen with justice kennedy. i wrote a story of an atmosphere piece about the court that morning. my final sentence was the kennedy watch is not over yet. so, for what's that worth, which is not much, i was at least thinking that it was going to happen. arthur: so did justice kennedy's colleagues know when they were on the bench that morning and they kept their poker faces or did they find out roughly when you did? any idea? >> i believe the press release they put out said he informed his colleagues that day. arthur: alright, so adam, you've got a front page story in "the times" this morning about the white house's quite campaign to get justice kennedy to retire going back almost to inauguration day. why don't you tell us about that and what it took to put that together? adam: there were several elements. it was one of president trump's most dearly sought wishes.
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he arrived in office with a vacancy with justice scalia's death giving him the opportunity to put one justice on the court, but it was a one-for-one conservative swap. what he really wanted to do was shift the balance of power on the court and almost from the moment he got there, they were angling for that second seat. they knew that justice kennedy was 80 at the time and knew he was considering retirement so they did everything they could. they were very smart about it. however ineffective the trump administration has been in other realms, particularly
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administratively, on judges, they've have been very effective. the very fact that they put justice gorsuch on the court was telling because justice gorsuch is a kennedy clerk and might reassert kennedy that has -- his legacy would be secure if a similar person was put on the court. for talk of the next vacancy, the two names floated in the white house -- what do they have in common? both kennedy clerks. donald trump praised kennedy wholesomely in many ways, a lieu of what he called justice roberts, an absolute disaster. there was a connection between the trump and kennedy families. justice kennedy's son was a banker that worked with donald trump, and apparently moves in the same circles as donald trump sons. the ivanka trump showed up at
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the court last year at the invitation of justice kennedy. it did look like this was a concerted and effective effort to charm justice kennedy off the court. now, i believe justice kennedy said he retired when he won to spend more time with this -- his family, but nor did he betray any reluctance to stepped down under president who cuts a different profile that justice kennedy, who is sort of a little abstract, mild-mannered, very civil, not qualities you associate with donald trump. but he didn't hesitate and that may have been a consequence of what looked to be a very well executed plan. arthur: ariane, you did a story last night about -- you did a story last night about white house counsel and the likely timetable for announcement based on people you've been talking to. tell us about don mcgann's role and how soon we can expect a nomination.
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ariane: well, you know, not only did the conservatives have big wins during this term, there were more dozen cases where the conservatives one, but it was a huge win for the trump administration, starting with the travel ban, which was sweet vindication for the president who had lost the load on earlier versions. and also last week, this week -- i'm losing time here -- there was an interesting lower court opinion that not a lot of people paid attention to, but has to do with nationwide injunctions. that's when a court blocked something not just for the plaintiff for the country. they are nervous about these nationwide injunctions being put in place. big wins for the trump administration coming out. keep in mind that is gorsuch in
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the 5-4 side. what's interesting to look at is don mcgann, who's one of the earliest members of the trump administration. way back in the campaign, he decided with the federalist society to make judges a priority, supreme court and lower court judges. and mcgann's really pushed through there, working through the senate majority leader and chuck grassley and pushed an unprecedented number of judges through. you really saw what happened there. you saw the travel ban and the lower court ruling in their favor. i think they come out of this with this opportunity now as adam said, to really shift things and the war room is gearing up.
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the white house is assembling a team that a super successful with the gorsuch nomination. they are hoping to announce the name of the next nominee as early as july 9. you never know if that's going to happen, but that's a pretty ambitious timeline. the democrats, on the other hand, this is their worst nightmare in a lot of ways they are gearing up themselves a little bit of disagreement on how to go at this. are you going to block hearings? they're looking at away to combat the list. they call it the #ditchthelist. they're putting a focus on roe v. wade and what might happen
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and put a focus on the affordable care act and the trump administration's recent brief, saying they would not defend key portions. and they're feeling, some are feeling a little bit flat-footed knowing that after the garland nomination fell apart. and the summer before the presidential campaign, i look at politics through the prism of the court. i was a little surprised they were not keeping up with that drumbeat about garland. some people thought he was too much of a consensus candidate. and now, really, they're seeing these opinions coming fast and furious and their gearing up for a big fight. the question is, how much can they do? arthur: tony and david, you have actually been on the seat long enough that you covered justice kennedy's confirmation hearings in 1987. and you covered the unsuccessful nominations before that. and since then, you've covered every single confirmation fight. with all that experience, what can we expect the summer?
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tony: i do remember the confirmation battle as you mentioned. justice kennedy's nomination was preceded by reagan nominating judge bork. that was a disaster. i remember actually interviewing judge bork. that was back before supreme court nominees were put away in the closet. they're not allowed to talk but
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bork gave me an interview. then judge ginsburg was nominated, and that was a disaster also because it turned out he smoked marijuana as a harvard law school professor and that was a no-no back then. when anthony kennedy was nominated, it was almost like an anti-climax. here's this plain-vanilla guy from sacramento. as i recall, it was a fairly smooth hearing. people, i think, were exhausted and just wanted to get it over with. david: what i remember from that time is that then and now there's a big difference between certain republican nominees. bork was a guy who spent his life criticizing the warren
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court, sort of liberal court of the 1960's and 1970's. he was opposed to a lot of the civil rights decisions, certainly roe v. wade. bork was a guy who was a lifelong critic. if he got on the supreme court, he was going to change a lot and overturn a whole series of precedents. scalia was the same thing, a hard edge, heart conservative, let's overturn. kennedy was a different person. he's a conservative guy. he came up in the reagan administration when reagan was governor. he's a catholic, conservative, pro-court, but he had none of that passion that says i'm going to come in and sweep aside the 1960's and 1970's and overturn. he was much more of a temperamental moderate, status quo conservative. it was a great thing. there are not a lot of moderate republicans left in washington. that's what we're losing, the last of the sort of moderate republicans.
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i think the really great likelihood is the trump administration is not going to seek out a moderate republican of the anthony kennedy mold. they're going to seek out somebody who is a much more committed conservative, and much more willing to go back and say these earlier decisions were wrong. roe is certainly in that category, and we ought to the constitution right and overturn them, so i think that is where they are headed. arthur: is anyone willing to hazard a guess? if they do that, will they lose two republican votes in the senate? amy: i think the interesting question is not that they will necessarily nominate someone who is going to say that or has said that in the past. with neil gorsuch, if you looked at his lower court opinions and what he has written, he had not written anything about abortion or the second amendment. i did a panel last fall and this
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was even after just one sitting. he joined the court in april. and one of the panelists said that it turns out the federalist society knew him a lot better than his former law partners. one of the finalists when trump nominated gorsuch was william pryor from alabama, who called roe v. wade an abomination, they will not put someone like that. they will put someone up who may have a lot of confidence, but for whom, it will be hard to point to something to point to his or her background that gives democratic senators something to work with. arthur: anybody else on this topic? let me ask then, with justice kennedy's retirement, 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, bob? robert: well, i guess i don't know exactly how he would want to be remembered. perhaps if he did, it would be
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some sort of defender of liberty and dignity and civility, which are words that come up a lot with him. i mean i think what he will be known for more than anything is gay rights. i think he wrote every opinion, every positive opinion on gay rights for the court, topped by same-sex marriage. and so, i think his legacy is clear in that way. you know, what's interesting
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about him is that because he is on that side of that issue, but he also wrote citizens united, which is, at least in my experience talking to groups, about the least popular decision that any audience ever talks to me about. he has a mixed legacy. the interesting thing, too, is i think we expect judges to sort of call them as they see them each case at the time, and yet there has always been frustration from both sides about kennedy that neither the liberals nor the conservatives could really count on him and that he was always in play and that he was always the one that they were sort of trying to angle for. and i guess you could argue that's the lack of a firm philosophy or you could argue that it is someone who does take them case-by-case. arthur: any other thoughts about that? or i can move back to more familiar territory. so, this term ended with five consecutive workdays of frontpage, closely divided
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decisions. sales tax on internet sales, cell phone tracking, free speech for crisis pregnancy centers, racially discriminatory legislative districting, attorney's fees for government employee unions, the travel ban, and even a 5-4 antitrust decision with a very energetic oral dissent by justice breyer. and there were at least four other decisions during those five days. how do you manage to cover all that, or do you even try? i know "the post" can send backup reporters because they are here in town. but david, for example, do you have any backup or are you one man baseball team?
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david: i'm a one-man -- i do it myself. but usually there is one big case of a day or maybe a second one. i could do two stories. if you want the fourth or fifth best case of the day, you need to go somewhere else. [laughter] >> the court actually won't admit to this, but it's pretty good about spacing the cases out so we typically don't have to handle more than one real blockbuster a day. arthur: and do you think they do that for your benefit? [laughter] adam: well, i remember once the chief justice accommodated us. the press wanted it, but for any other reason, i cannot think of it. arthur: ariane, you're our tv reporter. how fast do you need to get on the air after decisions come down at 10:00? ariane: it depends. >> they cut us off down here. [laughter] ariane: it depends where we are in the term. in the last week, we have an entire team that works on it. we get quickly onto a conference call and get cracking as quickly as we can. so, i can't think -- this term -- i'm thinking the last week -- we didn't have one of those tangled opinions that we've had
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before. those are the ones where you look at it and think uh oh, what's going on here? i can think of vote counts that were not exactly what i thought they would be, but i didn't feel like we had one where we thought, whoa, what have they done? we have had that in the past as there was an affirmative action case. a little bit maybe with masterpiece cake shop, the case about the baker. that was closely tailored to the case at hand. you had to look at that. that was a little bit easier this term i would say, particularly in the last couple weeks that are so crazy. arthur: the point ariane is
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making is a really good one because there is such a pressure to file things quickly. we can write one or two different versions of the story and take 30 seconds or a minute to say file this. it's a great opportunity for making a fool of yourself because you can say the court struck down this. you push that button and then go wait a minute. it's an interesting minute or two of scrambling to read the opinion, check the votes, make sure they actually did one of the two things you thought they might do and then push the button. it's a fun, hectic time. >> what david said is sort of the dirty secret of our profession. we do pre-write these stories. ap and wire services used to do that all the time.
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pencil press, the newspaper reporters -- and david remembers this, too -- we would get the opinion at 10:00 and then we could peruse them and have lunch at the court. sometime in the afternoon, we'd wander back to our office and write the story. that just isn't possible now. so, you know, you have to have it out within 10 minutes. i don't think there is anybody really who could do it at less speed than that and get away with it. there is a tremendous possibility of making an error like this. [laughter] >> i think it's on. tony: hello?
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anyway, you can get it wrong. sometimes a footnote on page 43 is really important and you are not going to get to that in 10 minutes. so it's just part of what we have to do now. arthur: thanks. i look for examples of the kind of thing that ariane was talking about and i can usually find one every time. -- every term. there was one in april. at the end of the syllabus, they give a lineup of who wrote what. here's what came out concessions -- in sessions against dimya. justice kagan gave the opinion of the court with respect to one, two, 4b, and 5. with opinion and are spaced apart 2a, 4a, justice gorsuch filed an opinion concurring. chief justice filed a dissenting opinion. justice thomas filed a dissenting opinion. that was 96 pages worth of opinions. it comes out in a little booklet
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that looks like a short novel. and so given your 10 minutes, how far do you get? >> you know, you're seldom going to go wrong with saying 5-4. [laughter] the one i remember being worried about was the sports gambling case. there was a law in 1992 that said states may not authorize sports betting, but there was a second provision that said individuals may not license, sponsor, promote sports gambling. so they were challenging the restriction on the states.
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right? then the court agrees it is unconstitutional to hamper the states like that, but the government said all well and good, but nonetheless sports betting is illegal because there is 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 sport betting, but actually they didn't. anyway, i always think there's a certain number of landmines that you're sort of worried about walking right into in the cases. amy: i don't know about the rest of you, but my pre-writes sometimes for the more complicated cases look like the choose your own adventure books we all read when we were little. you can try to game out after the oral argument to 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,
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but the result in the maryland case was more of a surprise. the danger that you have this pre-write, but you don't want to make that the narrative for the story. you have to read the decision and make sure you are actually reporting what it says and not what you thought it was going to say. ariane: so, going back to the first case, already you had to look and see who was where and what's the vote count. but that was interesting, too, because that was one of the earlier cases.
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and justice gorsuch cited with -- sided with the liberals there. and oral arguments, you have a tea leaf about that. he, like scalia, does not like vagueness, particularly when it comes to criminal defendants. we sort of knew, okay, there was a good chance here that gorsuch would go with the liberals, but that wouldn't mean he was changing his jurisprudence. in fact, it was a move where he was following in the footsteps of justice scalia. and i wrote that. 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 solid conservative or not? and even after i wrote it, though, i got a note from one of my bosses saying -- and i don't think identity enough job -- saying what is this? he sided with the liberals. it was very interesting. there were those things on deadline that you have to look for. and that instance, you can be prepared for it because you knew it might come. just when you were talking about that case, it brought me back to that. arthur: so amy, in addition to writing in-depth analysis on your own blog, you often help to cohost the live blog on scotus blog, which is actually online as things are happening. and yet you can't bring a laptop
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or cell phone into the courtroom, i can't even bring my apple watch into the courtroom because they are afraid i might report something. how do you manage to do that? how many people are listening in? amy: yeah, there are no electronic devices allowed in the courtroom so you have to go up and listen to the opinions being announced. there's something to that to see whether mary kennedy will be there on the last day of the term. they can add a level of nuance seeing how the justices react to each other while the opinion is being read from the bench. one of the most vivid memories i
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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 versus texas, striking down texas' a ban on consensual sex between two adults. this was a case because we knew it was the last day, we know it was coming. a lot of the lawyers in the gay-rights community was sitting in the bar section. as justice kennedy was reading the announcement from the bench, talking this is a matter of fundamental human dignity, the tears are pouring down the faces of some of these lawyers. another memory was the decision in a case. bann was the acronym. by all means necessary. as justice sotomayor is reading her very sharply written dissent from the bench, the other judges are visibly uncomfortable. there looking around at the crown molding. justice was recused because she
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had been a solicitor general when the united states filed a recent case. she was the only one who looked happy to be there at the time. [laughter] you can have that level of nuance or you can be in the public information office. and it's quite a scene, especially on big announcements 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 marshall bangs her gavel. the audio comes on in the public information office. they announce justice alito has our opinion on number 17 whatever of janus versus american federation of municipal state employees. they start handing out the opinions. and the folks really in a hurry, the wire services reporters,
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grab the opinions and turn around and literally run out of the room. we all know to stand out of the way. if you're not there on a regular basis, you don't necessarily know that. a young reporter kind of got body slammed the other day. someone lost their shoe. the day they announced their travel ban, having learned from this experience, one of the wire reporters turned around and said to a reporter standing at the doorway between the public information office and the pressroom, he said you probably don't want to stand there. she laughed because he thought he was joking. another said no, really you don't want to stand there. in the scrum that followed, somebody said did somebody lose a shoe? [laughter] i go back to the pressroom and start trying to decipher it. who wrote the opinion, which will usually tell you a lot. what was the vote? you try to start pulling out the money quotes from the decision. some justices write introductory paragraphs that are more helpful than other justices. this is the question and this is our answer. sometimes you really have to wade through and see what people
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say and then turn to the dissent. we've had as many as a million people on the live blog back when they announce the decision in the affordable care act case. that was really kind of a one-off. good numbers, but nowhere close to that. arthur: who is first on the line? who gets the opinion first? amy: the wire services folks. arthur: and do the rest of you sort of have a regular alphabetical order or custom or do you elbow each other around? >> it's a little bit of a free-for-all, but the rest of us are more civilized. [laughter] >> i was going to mention, one thing we have talked about this 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.
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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 where a florist is basically in 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. the court could not take it and the washington courts ruled against her. the court could leave it in place. the court could accept it for the next term. the court could send it back in light of their decision that masterpiece, which really didn't say much at all about the facts of the case or how the lower court should now decide that case. and so they decided to send it back. but it's always in one sentence. there's no explanation for that.
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and that's where sometimes when we read about the court, we read about it in sort of a form of educated speculation. my editors will often say to me, who said that? i say, well i do, because there's no one else to say. sometimes you have to decide some things on your own about what the court's actions might mean and sometimes you might be wrong. arthur: so, one reason i like to go watch the decision days in june is because of the possibility of oral dissent. in this term, there were six. one by justice ginsburg, one by sotomayor, one by justice kagan, and four by justice breyer. >> check your math. arthur: check my math, okay, my math is wrong. i think that's the most since the 2012 term.
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in the last couple of terms, there were only two or three. is this a random variation or is there another explanation? how much does the fact that a judge chooses to do an oral dissent affect your reporting of the case? >> i first would just like to point out that three plus four is seven. [laughter] arthur: that's why i'm a lawyer. >> what a know it all. [laughter] >> i think it's a consequence of a fantastic route on the left. the left lost and lost and what do they do? they are dissenting from the bench. it's an unusually high number. i think most of us noted and used some formula in the side of profound disagreement, justice
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breyer, as he did yesterday and the day before, dissented from the bench. none of us go upstairs anymore. we are not able to convey the drama that some of us had colleagues in the courtroom. in the travel ban case, again i wasn't there, but justice sotomayor's oral dissent from the bench was very dissenting. >> let me help cnn with technology. [laughter] ariane: i wasn't up in the courtroom. i wish i were. our amazing colleague at cnn was up there. i didn't have to be up there to hear the pinched tone of elena kagan on that unions case. wow. she was mad and that really struck me. i didn't even have to see it. i heard it coming through the audio. arthur: the scene that you all missed that you cannot hear was the day that the antitrust case came down.
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the court-martial didn't realize that justice breyer was going to do an oral dissent. she banged the gavel and started to say that the court is adjourned until tomorrow. justice breyer was adjusting his microphone. the chief had a sort of stand up and wave everybody to sit back down. everybody was laughing. justice breyer started out with a big grin, saying i realize it's only an antitrust case, but some of us think it's important. justice thomas who just the liver majority opinion and sadness to him at the sonoma smile on his face and was laughing at the joke. really making a show of good cheer all around on the bench. then he delivered an opinion saying that -- >> the reaction was you have to
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be kidding me. >> 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 in thisof a new justice last year and a half? >> this was for the hotbeds, the idea that the question comes back. if you go back and listen to and justice ginsburg was an advocate before the court -- she gets to talk for 10 minutes straight without interruption. a lot of the lawyers were probably a little jealous. hand, he is probably a little bit quieter.
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was the knew that he swing, he didn't ask any questions at all. veryn be sometimes a active questioner. sometimes very quiet. the one thing that justice gorsuch seems to do is he will really press a point in a way that some of his colleagues do not. he could be trying to make the point the lawyer -- trying to get the lawyer to concede something. i think he had this in the cell phone privacy case, trying to press the point that the criminal defendant had a the cellentrance in phone records that the service provider had. you will see that he was incredibly well prepared. he will get him to back down. the other thing that could be going on, he had unique views on the laws.
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i heard justice kagan talking about this when she was the junior justice. at the conferences, they go around the table and vote. as the junior justice, he is the last justice that gets to vote. to hazard extent, this was his way to talk to his colleague. he had some unique views on the law that he will press at some might. i think they are probably a couple of different motivations going on. justice courses turned in the most consequential freshman performance by a member of the supreme court. >> we talked about the one case in which he joined in the liberals. in 14 others, he provided the decisive boat going other way. it was a fair bet that the justice jay have gone the other way. -- notwithstanding some reports of fresh with other
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justices, entrusted with very big cases. junior justices weighed yesterday in addition assignment. this was the second assignment. chief justice roberts trusted him to turn in a sophisticated and sound opinion. he has a lot of wealth ones idiosyncratic peers. he is writing a lot. why only be the reason 59 signed decisions and cases -- it took forever to get them out. that was in large part because there was a lot of separate writing and a lot of that was attributable to justice gorsuch. >> they had the epic case, that was the second sitting.
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there were 15 decisions and he brought the majority opinion in five of them. >> along the lines of how many by yoursions they were, go the court was unanimous, more than 50% -- 57% of the time. this term dropped by 20%. this was quite a dramatic change. fewe were relatively exceptions, the big 5-4 decisions with this term. is the court becoming as politically fractured as the rest of washington or are they individuals calling them as they see them? >> yes to the first. their becoming as fractured as washington.
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a lot of the cases that caused this big fight were conservative challenges to laws and liberal states. this is something like 22 states, democratic leaning states had these laws that allow for agency fees. the other 28 states have rights to work laws. they took up a first amendment challenge to the democratic state laws and overturn them on a 5-4 vote. the five republicans voted to overturn the democratic law. the masterpiece cake shop case was a religious liberty to something where life 21 states have state 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 those kind of laws, texas does not but california, illinois has that kind of law. they are taking that persimmon a
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challenge. there are quite a few cases. there was a california law that says these crisis pregnancy centers have to put up a notification that says you have licensed people on staff. they struck back down. it is split very much. they have the voter purge case from ohio. guess what the vote was? everybody would have known before the case was argued.
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i would predict the five republican appointees will see it one way. the four democratic appointees will see the other way. you have been right. >> this may not be the best one to see as a point of comparison. for most of the term they only had a justices. a lot of the decisions were all about was all get along. there was uncertainty about where they would get a new justice to prevent the justice might be. in the weeks and months after justice scalia's death in 2016, they were not taking much in the way of cases. >> i thought they put aside
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their differences a little bit on the partisan gerrymandering case. they said this case needed to go back for more work but she is that to write a very long opinion that basically laid out how you could bring a successful case against partisan gerrymandering. and i thinkat case it ended up being more effective by doing it that way then it would be if it -- if she had done it as a dissent.
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i think sometimes there is strategy about those kinds of things. >> i think bob is quite right. butdecision was unanimous that is a little misleading. but kagan represented or both. had garland, not gorsuch been on the court, there would have been five votes. >> what bob said was right. on monday, isght not necessarily right on friday. >> i think bob was correct to say that they passed on the case because of standing grounds. there was still a good argument for how to go forward on partisan gerrymandering in the next case. that was not going to happen. the chop appointees is not going to be a fifth vote to strike down parson gerrymandering.
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>> i think we will be hearing a lot in the next couple of years, roe v. wade to give you an example. note, which means a lot to us and maybe not to the general public, you look at she went hard on that issue, why are
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we overturning president, why would we do that? it is interesting because in the travel ban case, justice sotomayor brought up core korematsu. and the chief said that was not fair. and he overruled it. like kagan i felt was talking to the chief in the uppercase, and then you have the tension between sotomayor and the chief. that was very interesting. >> does anybody think that the chiefs paragraph was written after he read the dissent? >> of course. [laughter] >> he said so.
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>> did he? aboutther thing unusual this term is that the u.s. changed its position in for importing cases, employee arbitration, voting rights from ohio, the union dues case and the case about whether arenistrative law judges officers of the united states that have to be appointed by the head of agency. if this annoyed the court, did it make a difference? didn't annoyly them enough to make a and it was interesting, they cease to be something the chief justice was very tough on the solicitor general's office during the -- during the previous
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administration. it is still not working. cease all communications. [laughter] >> he did not bring it up very much. side, now that the table seven turned debate, -- justiceomayor is sotomayor did say, how many times have you changed position this term? he said three and i think it was for. was -- was four. it's not surprising a conservative administration changes position to a conservative position and has upheld by a conservative court. >> don't think the court could get that upset, at least the
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majority on janus. it was based on a 1977 decision, .he majority then overruled if they're going to say it is wrong, who are they to disagree? >> the elena kagan, we covered andvent she gave, a talk, elena kagan, coming from the solicitor general's office gives a talk with another former solicitor general, and i think was before this came out. she talked about how serious it was. her tone was like, it was a big deal. i thought that was interesting. >> part and parcel of what is going on in washington, all of the norms of behavior are shifting.
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people say, we never did it that way, you are not supposed to do it that way, nobody says you can't do it that way. it just becomes more partisan. in addition to -- hello? [laughter] >> in addition to reporting on decisions, you cover oral arguments and you could be upstairs on days when they are handing down decisions. were there any highlights you think could have changed the outcome? any takers? >> i don't know if that change the outcome, but there was one where roberts got angry, primarily at dryer -- justice
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the principles of how cases are supposed to be argued. hayes, ae city of criminal case. justice breyer was asking the lawyer about some factual case, andn about the the lawyer said, this isn't in was startingnd he to answer the question, and roberts said, wait a second. if it is not in the record, what you are about to tell us could be the same as if somebody came in off the street and told us this is what happened. tense and thed of lawyer, who coped with it well, did not know quite what to do. justice breyer said, you don't
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have to answer that question. presumably because justice roberts was so angry. roberts said, you can answer the question, but take notice, i will not take, i am not going to give any credence to what she is going to say because it is not in the record. it doesn't sound like an issue to get really angry about but that's the kind of thing the chief justice roberts feels strongly about. the case was dismissed as improperly granted, and the lawyer for the defendant, who had dealt with the chief wonice's anger, she because the lower court case was upheld. >> i think this was also a case in which people came down and
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wrote about the oral argument, but everyone went online to find examples, all of these justices had gone online and done their own research and various cases. there were plenty -- there was plenty of fodder. the amicus briefs are full of them and routinely cited. >> one of the interesting phenomenon in the court, sonja sotomayor talks a lot in the argument. justice breyer is the other one who halfway through says i am confused about what this is about and talks a while but does not ask a question. justice sotomayor talks a lot, and sometimes when she doesn't, it is a conservative side or something, and she will keep talking, and when the council starts to answer, she will keep
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talking. long-distancese -- long dissents, she seems to be getting a message out to the wider world. it doesn't look very effective inside the court. you can see, kennedy and roberts will sit back. roberts a think is tempted to interrupt her and say, everybody should ask questions. she is sort of filibustering. am curious what the rest of you think about it. she is playing a different game than a lot of the other justices at oral arguments. >> i think you are right and i think it is also true of her which plays to a crowd, and she gets very good feedback from her crowd about it, but it is not clear how effective it is as a matter of legal strategy and jurisprudence it is. moreas elena kagan plays a
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tactical and strategic game. >> think you saw this in trump versus hawaii, in the dissent, there were two factions within the more liberal justices. you have justice breyer and about they talked majority relies on this exemption and waiver provision but we are not sure how it is an option for people trying to come to the united states. sotomayor and ginsburg, talking about his is a muslim man. -- ban. >> the travel ban argument was theavorite moment, when roberts tries to get extra time to an advocate who has gotten a lot of questions.
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and then there is a very good argument. the mark of a really good argument is just as your red light is going to come on, you come to your closing statement and landed like a figure skater. the chief and then justice is you can have five more minutes. [laughter] blog compiles a bunch of statistics at the end of every term. looking at the one for this term, total questions per argument this term. 124 average total questions per argument, too per minute in a 60 minute argument. how can anyone answer a question? mean, a classic example when i was teaching that i used to use, talking about oral arguments, someone got up from beginspondents sides,
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, chiefe traditional justice umea please the court, and he got the word "the" before he got a question. i think that's why the lawyers who argue regularly before the court are so good, because they managed to ask -- to answer the questions and we then -- and include their arguments, and if you're going second, to adjust to what your opponents have asked your -- have asked. >> a newcomer will give an opening sentence or two, and in say i have three points to make, and as soon as they get to one, the next 15 minutes -- they -- and justice kennedy will say, can you get to the second point? >> it is an amazing talent.
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there is a fellow who has that talent that you mentioned. time when there was a seth waxman was giving an argument and three justices asked him questions at the same time. he just stood back and said whoa . and then he answered each like it wasorder the easiest thing in the world. tom does that as well. -- i think sometimes, you know, i would have fainted somebody had done something like that. some lawyers have fainted. [laughter] >> it is just an amazing skill. >> i don't know if it is true, but there is a story about a lawyer who argues regularly before the court, and he
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practices, if you injure sentence and you cause -- you pause at the end, that allows them to ask questions, so he practices pausing in the middle of a sentence. of the advocacy of the court, written and oral, is fantastic, and the questioning is fascinating, the justices are very good lawyers and able public servants, they are not typical washington public service these days and it is a pleasure to cover it. >> another statistic that caught my eye in the scotus blog stat pack, they keep track of who asks the first question in oral arguments and how often. i thought it was remarkable, the first questioner this term, justice ginsburg, 54%, and just sotomayorr -- justice
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17%. that turns out to be pretty consistent going back. last term, the two of them 52%. the term before that, 62% of the time. the two terms before that in the same range. i had not noticed that, watching. is that an obvious phenomenon you have seen that i was not aware of? is there some reason why they feel the need to be the first one out-of-the-box so after -- so often? -- justiceguns ginsburg always comes to the architect, there are some things she wants to get clear right away. she always has something she is unclear about. it is not part of the argument, she is basically saying, before we get into this, does this mean -- and she want something to be clarified at the start. >> especially if it has to do with procedure.
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she is the civil procedure maven. law thatis a potential might keep the cord from getting to the merits, she will identify at first. study, a little controversial, but a study that said the female justices are more apt to be interrupted, maybe they want to go first to forestall that. >> were 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 courts opinion in the merriment gerrymandering case, the court basically said we are not ready to think about this case. it did nothing to resolve the gerrymandering issue. you pointed out 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? about theto write dusty corners of the supreme
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court practice, and that is one of the dusty as to. -- most dusty. chamber opinions are opinions written by a single justice for the court, and it comes up when want,s have a state may -- a stay they want, an extension of time. they will petition of justice who oversees the circuit where the case comes from. it used to happen all the time, a justice would hear that lawyers argument in chambers, or by brief, and he or she would come up with a short opinion and resolve the case. now that those sorts of petitions are usually handed over to the entire court, there are very few in chambers opinions that occur now.
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but there is a rich history of storyincluding this great lawyers wanted and in chambers opinion from justice william douglas, except he was not in chambers, he was in the woods, in washington state. justicekked out, the made their case in person to justice douglas, he listened and stump and a tree said, come back tomorrow, this opinion will be on this tree stump. [laughter] >> sure enough, he issued an opinion denying what they wanted. [laughter] >> the reason this came up is because the maryland gerrymandering case had to do with a luminary injunction and
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the fact that it had been filed the six years after redistricting maps have been established. there was not much president on cited in the court chambers opinions from justice marshall and kennedy. anyway. it is a little historical note, you can read about it at the long review, they have taken over the gathering of in chambers opinions and public education of and chamfers opinions. >> -- that is it. >> how are we handling questions? >> [indiscernible]
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>> if someone has a question, one of they raise their hand and i will repeat it? >> i heard and allender switch -- and allender switch -- an and inew on in br -- on interview then other day and what does the panel think about ginsburg retiring? >> the chances of her giving donald trump the opportunity to fill hersey are zero -- fill her seats are zero. [applause] why hernk that is trainer is regarded as the most
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important person in america. [laughter] >> a khalsa mind what thurgood marshall used to say. when people wanted him to retire, he would say, prop me up and keep on going. >> every court rules on aspects of presidential power. this next court, it will rule on intensely personal business conduct and other conduct of a president who will appoint the next justice in a way that is more personal, talks about more personal behavior than professional conduct, and how the presidents personal and conduct influences the role. do you see the democrats bringing up a conflict of issue -- of interest issue that is perhaps different from a nixonian behavior?
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that it will be a different nomination, and also have you see that shipping the nominations in your experience? >> the question for the people who might not have been able to hear, does the panel think the nomination process will be changed in some way by the possibility that whatever justice president trump appoints may be sitting in judgment on questions involving president trump's behavior. anybody? >> it is a fairly abstract, i am not a political reporter, i am a retired lawyer. it is a fairly abstract question to sell to the democratic ace -- democratic base. i think a winning strategy, roe v. wade will be a more compelling argument in terms of its simplicity.
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>> with the new opening, do you see the court changing the 5-4 change,s kennedy did to and in which cases? more on the 5-4 decisions that kennedy was the proponent of, with the so-called 6-3 coming in, well the court be willing to change those? >> there is a lot the court can -- the court can look at something like roe v. wade and not overturn it, but really hamper it, cut back. there might be an appetite to do that. you would not see it being
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overturned, but at the end of the day, you would see it weakened. that could be an intermediate step they can take in a case like that, or with kennedy's legacy. if you look back at sandra day o'connor, she saw her legacy cut back a great deal, and you wonder if it could be anthony kennedy next year. it will be fascinating to get his perspective on that. >> i would not be surprised to see affirmative-action overturned by a new course. it is 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 michigan affirmative action case
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a 25he essentially spent year lifespan for that, and that was in 2003, 15 years ago. >> [indiscernible] -- the new swing vote, with , doice kennedy's retirement you think he might moderate over the years? >> does the panel think chief justice roberts might moderate his views in order to avoid, to bolster the courts institutional reputation? i'm not sure that is a great summary, but it will do. >> you are quite right, he is an institutionalist, he cares about the authority of the court. he is also an incrementalist, he takes things one step at a time, and he is not particularly old. but he is a conservative and he will move the court to the
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right. >> [indiscernible] about the civility espouse in the positions by justice kennedy, what do you see from the last term? did you notice he was deviating about that, because i read evenles about that, but before that, there was less of a focus on civility and dignity and just siding with the right. >> i have read several times and i will read many more times about the travel ban case, because i'm not exactly sure what the message was that he was trying to send. that, i think at he was saying, look, the president has broad powers here, but presidents have to follow the constitution.
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that is sort of where i am going. maybe that is what the message -- maybe that is the message he was trying to send. >> we have had all mail questioners. there we go. >> [indiscernible] recently and going forward, where do you see the court going in terms of the administrative state and curtailing the administrative state? i'm curious specifically where you see substantial curtailment going. >> david? >> you are certainly right, they were curtail -- will curtail the administrative state. this chevron doctrine has gotten a big, and i assume they will write a decision in the next year or so that basically overturns chevron. that is power to judges rather than agency executives. i remember back in the 1970's, chevron, reagan was
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in charge, his people were at the epa, making environmental rules, we don't want judges deciding these things. we should defer to the executive agencies. but the right has changed on that, especially when obama was present, so now they are back to saying judges should decide this , not agency bureaucrats. i think that is one. the other one is, this case that was decided, the sec, i thought the trump administration briefs were really interesting. the idea thatush these people are presidential appointees subject to removal by the president, no sort of good cause, we don't want judges they're just on merit. they wanted the court to say that they are subject to removal at the political. is this onere officer we all know of in that situation, a guy named mueller,
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appointed under a regulation that has a good cause removal. i think that is another area. they decided that case very narrowly but i think they will push on the idea of saying we want more political control and accountability in the agencies. [indiscernible] -- in a series of death penalty cases, and i wonder if you could provide insight about that of the and the process particular comments by justice breyer? >> a question about justices who publish dissents from denial, what purpose does it serve? >> very often it's an attempt -- sometimes they are circulated internally to persuade people to change their votes.
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when that doesn't happen it's often intent to tell litigants it is often an attempt to savoring is another case like this, we are interested. the death penalty cases are a special case. they are an artifact of a dissent from a couple of years ago. justice breyer 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. now he could write as many the -- dissents of denial as he wants and the court will not overturn it. >> i was going to say sometimes you see -- especially in the death penalty these dissents of denials by a rotating cast of the liberals. think, why did one liberal join this one but not join this one? it takes four to grant cert.
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i think they don't want to say we could actually take this case because they know how it will turn out. but it is a good way to sort of send the message out about what they are upset about. as adam said hope for a better , case or one that would give them a better chance. >> it is really hard to hear a lot of what you're saying in the corner. they are asking really good questions and i'm sure you are making great points. could you project more so the whole room can hear? >> we will try. we have time for one more. >> i'm glad you have a sense of humor. i had someone who sent me a gmail this morning saying, who is adam liptak and is is he credible? [laughter] i wrote him back and said he is linda greenhouse's successor. >> that's no answer.
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>> i thought it would put him off long enough to read your article. at the beginning of the week we heard justice ginsburg talk to the d.c. bar. she wanted to present the court in a nonpolitical fashion. as you point out, by friday we had things very different. that was one very well researched article. the exchange would think trump and kennedy was referenced about the banking interest. about the charting of the kennedy clerk. >> we need you to ask the question. >> your reactions in light of the article and how it makes you feel about the court? >> i don't think that's the question is -- we talked about this at the beginning about whether the trump administration's attempts to get kennedy up the court, do they shake my confidence in reality and the political system and democracy? no, it is quite routine.
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presidents try hard to usher off the court. kennedy'shat justice son had business dealings with president trump, i don't know if that tells you anything. it is worth knowing. the kennedy kids are successful, middle-aged men who of gone on to have careers. it is not unusual in new york people should a business dealings with each other. i'm glad you stood up for my credibility. [laughter] but i don't know if there is anything particularly unusual about this. in was much more active trying to get people off the supreme court. >> we have 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 will rebroadcast it tonight and tomorrow. you can come back next year when we promise to have a working sound system. thank you very much.
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[applause] [crowd noise] >> justice anthony kennedy's retirement brings a significant change to the supreme court. follow the story on c-span, from president trump nominating a
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replacement, the senate confirmation hearings, to the swearing-in, all on c-span,, or listen of the free c-span radio app. c-span recently sat down with white house press secretary sarah sanders to talk about the job interactions with the media, and the president's communication style. she talked about her initial reaction to being asked to leave a virginia restaurant last month while with her family. from the white house, this is 20 minutes. >> sarah sanders, as you approach the one-year mark, what is the biggest challenge? sarah sanders: being away from my family, that is the hardest thing, the job is 24 hours a day, seven days a week, and never stops. that is tough, i have three
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young kids and a husband who still like me, a good thing. they want to be around me more often than i get to be there. for me that is the hardest part of the job. >> in terms of how you prepare, what is the process right now? sarah sanders: a number of things that play into the prep process. certainly the most important is talking directly to the president and being able to do my best to accurately reflect his thinking on any number of issues. it is so wide-ranging and anything is on the table. you have to try to cover as much as possible. one of the other things is the daily prep of being in the room as meetings are taking place and decisions being made. you understand some of the background story on how we got to a decision, and the decision itself. those are big parts of it. we have an incredible team i work with. usually anywhere from one hour to two hours ahead of the


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