They have brought surprises to the president s. We have a distinguished panel with us today. We will hear from each panelist. The panelist will then exchange questions and we will take questions from the audience. Duffield. Have Stephen Stephen is Vice President for. Olicy at crossroads gps stephen worked for senator jon the john roberts nomination and confirmation. He will discuss the expectations asarding judge robertsrole chief justice at the time he was confirmed in 2005. Next, we have jan crawford, who is the chief correspondent for cbs news, and also a graduate from the university of chicago law school. Courtvers the supreme regularly and published a book in 2007. She is going to speak about how Justice Roberts tenure has coincided with public expectations at the time he was confirmed. We are also joined by the partner. Mike has argued numerous cases court. The supreme he will discuss some of the hot button issues that have arisen s 10g chief justice year. Last but not least, we have professor michael paulson. He is a professor at the university of st. Thomas school of law. He has written extensively on constitutional interpretation. He is knowledgeable about the courts religious freedom. He will offer some thoughts on the direction the Supreme Court might take during the next president ial administration. With that, lets begin with our first panelist. [applause] stephen i am honored to be a part of this panel. Kylsa lawyer in a jon leadership office. For those who were not caught up in that particular vortex, that filibuster. Ded the the republican stretch to in whate the filibuster is now called the nuclear option. Gang of 14 partial settlement of that dispute. The nominations of john roberts and the sobering experience. I have been invited to set the stage for how it was that john roberts was viewed in the senate and what the expectations were for him in the perspective of the senators that confirmed him. His and my goodfaith impressions of the experience. Lets go back to the summer of 2005. There was a great deal of concern that any Supreme Court nominee would be blocked by the buster. 55 votes. S had we believed they would hold together to block any but the most moderate nominees. In other words, we feared disaster. As a consequence of this fear, many months were spent working on how to frame a nomination. The arguments would be the same, regardless of who it was. I am sure everyone recovers john roberts judging his empires. I heard that not from judge roberts, but a few months before the oconnors resignation. A fellow republican counsel shared the analogy. Thatpose it is possible the stuff in the room never shared the idea or the phrasing with judge roberts, but color me a little skeptical. If you dont like the analogy, just do what you would like to do. Just blame congress. Keep in mind, there were consequences to this fear of the filibuster and the focus on framing and messaging. Its meant there was far less attention given to understanding the nuances of john robertsprecise philosophy. Lets go back to the timeline. The gang of 14 agreement was reached in may. Justice oconnor announced his retirement in july. The president nominates john roberts soon after. One thing was clear. Senators really liked john roberts. They thought he was brilliant, but they liked his style. My personal view is that john roberts excited senators because he reminded them of something they wished they could be themselves. They wished they could be more like ham. Some inhe same time, the senate said they replaced Justice Oconnor. Judge roberts was considered an improvement over Justice Oconnor originally. A very good choice for the oconnor spot. Enthusiasm grew. Retrospect, i think we will all agree he was a substantial improvement. The hearings occurred in the russell, now kennedy, talk is room. He leaned forward and gave a brief statement of his own that stunned everyone. The metaphor made its first appearance, as did the promise not to be a politician. There was beautiful language about his childhood in the endless fields of indiana. And the fightble was over that day. He next couple days of q a judge roberts proved his mastery of the law. He showed little in the way of specific judicial philosophy. At the legal hearings a few months later, joe biden clowned a halfand spoke 26 and of his minutes before he asked a question. We kept track. We did learn judge robertsfavorite movie is north by northwest. Roberts answer to senator graham simple question, what did he want history to save about you . Said, he said, i would like it to start by it saying, he was confirmed. But actually, the answer is the same. I would like them to say, that i was a good judge. Meant,not know what that except there was a firm sense that judge roberts was adamant judges should not bring policy preferences in. Saw they were getting a smart man who, contrary to his opening statement, was a good politician. They would always remark, wow, that guy is good. Was a sense that he truly loved the court. I am not sure that any senator had any idea what that would mean in practice. It is interesting to look at something he said in his opening statement. He said, if i am confirmed i will be vigilant to protect the integrity of the Supreme Court and i will work to ensure it upholds the rule of law and safeguards those liberties that makes this land one of Endless Possibilities for all americans. Court, ands for the coupled with the concerns for the rule of law and liberties. Let me read what he had to say about results oriented judging. During questioning, judge roberts said that if a judge is result oriented, it is about the worst thing you can say because what you are saying is, you dont apply the law to tell you what the results should be. You dont go through the decisional process. You dont look to the principles established in the constitution. You look to what you think the result should be at then you go back and try to rationalize it. That is not the way the system is supposed to work. To embrace the elephant in the room, these are interesting words. Those comments should be read in the light of the dissent in the samesex marriage case. I will let others sort that out. Provides other clues. He did not adopt a strict textualism. He said, a judge should start with the text. ,n response to senator cornyn he said i think when you folks legislate, you do have something in mind in particular, you expect judges not to substitute their judgment for you. But, to implement your view of what you are accomplishing in the statute. A few lines later he says, i think there is meaning in your legislation. The judge of a good judge is to do as good as a job as possible to get the right answer. Time you spend with the hearing transcripts, the more clues you see. What matters is the senators heard what they wanted and needed to hear. No agenda, no politics, the desire for anonymity. What they were left with was an institutionalist who was hostile to judges and searching themselves into policymaking. When you look back on it, you might find that this is exactly the guy. [applause] i think when we think about the Roberts Court i will ask to think back 10 years and this may cause pain, but if you remember how much excitement there was. Aesident bush had been given historic opportunity to change the Supreme Court in a way his father had failed to do so and even president reagan. If you are, the story of the Supreme Court has been one of his appointment for conservatives. Justices nominated by republican president s. Case, thoser justices failed to adhere to conservative judicial principles. Many victories for liberals, as we dont need to get into here. Why was that . Obviously, some of the justices warned as conservative as people had hoped. When i say conservative, i know that is a frustrating term, but i am referring to judicial conservatism principles. They were never that conservative to begin with. That is the story of justice souter. He looked conservative. He wore a threepiece nude and was polite [laughter] but he had no philosophy. That is the story of Justice Kennedy and Justice Oconnor. They fail to provide in many cases, the key votes that would have started to turn the court back in a more conservative direction, and away from some of the excesses. Still, other justices who did have strong conservative, philosophical views affected the court in unexpected ways. That is the story of Justice Thomas, who i believe is the most egregiously mischaracterized character probably in our generation. [applause] i have written about this a lot. It is very interesting because the story of Justice Thomas is one, as we all know, where he the narrative is he is a lackey of Justice Scalia. He is his understudy. He is inferior intellectually and that narrative is false. It is obvious, not only by reading his opinions, that it is in the papers. Picking keythomas positions on his own and scalia later changing his vote to join thomas. One and i talk about this in speeches, depending on the audience, especially on the west coast, i will start to talk about Justice Thomas i think it really is an outrage the way he continues to be perceived in the press. People will be all excited, what is he going to say . I start tol tell the stories and all most nobody wants to hear it. That is a tremendous disservice to a man. It is something i think is outrageous. His tenure on the floor has affected the court in unexpected ways. He, in many ways caused Justice Oconnor to drift more to the left than she already was. She was going that way, certainly. Was ahnquist court disappointment for conservatives. With thiseorge bush historic opportunity to do what previous president s had failed to do, which became obvious when Justice Oconnor shocked she was by announcing stepping down before the chief justice. He had to get it right and relied on a couple very smart people. He tapped to john roberts and that takes us all back. It is really funny because it is almost like, we have become full circle. Who is john roberts . Ago, i was one, and i argue with a lot of you in this , about whether he was going to be this judicial conservative. I convinced that he was going to be. Others were not. Even vividly in the Supreme Court press room, reporters were saying, he is not that conservative. He was really nice and he would talk to them and return their calls. He gave them his cell phone number. A conservative would never do that. They are so mean. [laughter] new he wasugh, i k going to be solid. That sheemos came out had written in the Reagan Administration. His comments on the margins were kind of snarky. His comments suggested he was really conservative. I said, to one of the members on the panel, see i told you so. He waltzed through his confirmation hearing. It was just roberts . We are still talking about some of his decisions. They are hard to figure. It is fascinating. It is fascinating when you think about how he would have ruled on obamacare and samesex marriage. Those decisions in his mind, would be completely complementary and not at all inconsistent. If he testifies, courts should not take on disputes. Courts should take a backseat. He would say everything is perfectly consistent with his testimony. The other thing about john roberts, if you go back and look at his 2003 testimony when he was confirmed to the d. C. Circuit, he had an Interesting Exchange about whether he was a strict constructionist. Wereof the republicans concerned about, what was he . Would he be able to face scalia and thomas. Think it at all. He said, he does not like labels. Can meannstructionism one thing in one case. Isthe time, he thought that a savvy answer. Does not like labels. He defies them in many ways. Of course, i think the other nomination that president bush made, and we will talk about the Roberts Court more broadly, was samuel leo. That was an absolute home run. His opinions are beautifully written. His presence on the patch has been an and or miss asset to the court. His questions are penetrating and completely different and in some ways, unexpected, than some of the other justices. And my favorite thing about watching Justice Alito is how often Justice Kennedy will jump in and ask an attorney, what is your answer to Justice Alitos question . I think Justice Alito has been, from president bushs perspective, the home run. And of course, replacing Justice Oconnor, they vote for the future of this court. But what is the Roberts Court after 10 years . It is almost too soon to say now with the two new justices and how they will affect dynamics on the court. A new justice makes a new court. We saw Justice Thomas come on the court. A solid vote that changed the dynamics on record. In many ways, i think it is too soon to tell. I thought about writing another book and was encouraged to do so by my publisher and decided not to because i think it is too soon. There is a snapshot you can take of the court in five years, in 10, and lord knows we have a lot to talk about today. I think that snapshot is being developed. It is not set yet. What will be very interesting is Going Forward. As this court established whether or not it has any consistent themes, whether roberts has any consistent approaches, this court will change. We have a president ial election in 2016. The next president could well fourwo, three, possibly appointments after reelection. Conservative justices who could very well be stepping down. , has i think, been frustrating for many conservatives. The whiterat wins house, john roberts may be writing dissents from the other side on that happy note, who is next . [applause] mike i will pick up on that happy note. The first point to be made, it is, it has been a midsummer to talk about the john Roberts Court. Misnomer toen a talk about the Roberts Court. Really, i think it is more 2005,te to say, prior to it was the kennedyoconnor court. In the last 10 years, it has been largely the Kennedy Court because he more than any other justices dictated the direction of the law. I am worried it will become the kennedyRoberts Court. If the kind of jurisprudence he brings to the Affordable Care act he brings to the other parts of the law, we will have rough sledding. I think it is too early to tell. The real consequential thing that happened from 10 years ago is not john roberts replacing chief justice rehnquist, it was Justice Alito replacing Justice Oconnor. These suburban Republican State Legislature was being replaced. That affected some of the various areas that i would like to chat about briefly here. The first things i would like to talk about is the substance of some of the things we have seen over the past 10 years and then just kind of, a approach to judging and how chief Justice Roberts differs from people like thomas. With the goodtart stuff because i am an internal optimist. Steps toade baby returning to the rule of law. Points out, if the election goes on, none of that will matter and we will descend into a hellish existence from which we will never emerge. [laughter] an argument that has some relation to the text, structure, and language of the constitution. So, that is nice. Areasd like to go to the in which we have made some decent progress and then, some of the worst parts of the Roberts Court. I will start with free speech. I will touch on these each lightly. Citizens united was a brilliant landmark in restoring individual liberty. Enhancing the marketplace of ideas as well. Generally, they have taken a very libertarian approach in all areas of speech. There was a decision called zarrella against vermont in which they reinforced basic principles of free speech. The case called alvarez was somewhat controversial, but maybe point that at least with respect to political, ideological, and scientific one your thoughts are constitutionally protected and the reason for that is, we dont want to allow an Orwellian Truth ministry to govern the marketplace of ideas. The dynamic in this area, and just about every other, these reflect Justice Kennedys decisions. The court can go as far as Justice Kennedy wants to go and no farther, except with respect to the Affordable Care act. I will come back to that. Kennedy has a libertarian approach to the First Amendment, that is where the court is going to go. Lastd a step backwards term, which was probably the worst term sense of the neck and 70s, where chief Justice Roberts wrote an opinion about the rights of judges to solicit campaign contributions. An can write that off as anomaly that the justices are different. Underinclusive analysis was a , and if departure, anybody takes it seriously which i hope they wont, could dramatically undercut some First Amendment protections. The other aspect of the First Amendment that is important is religion. I think, generally, very good marks in terms of where the court has gone on that. In terms of enhancing religious liberty and enhancing the religious adherence relative to the state, Justice Scalia wrote said, unlessat they single out religion for differential treatment, they can impose any neutral law. So, that area is from the free exercise clause to a statute that restores the protections. So most notably last wherehe hobby lobby case they vindicated the rights of religious employers. We saw a very similar development, which was a departure from the smith case. They said, even neutral regulations cannot infringe upon individuals. Be ok, aslaw would long as it was generally applied. Weve seen baby steps. In publicntion god forums, at least if you have the strong history of doing so. The real issue on the establishment clause, this court , it is yet confronted not established, and certainly should be, that it does not violate the clause if you give religious organizations funding. I think that is the one part of the religious agenda that has not yet been resolved. I a strong degree of confidence that there will be five votes for that if it comes up. The next area has definitely been a mixed bag and that is racial equality. I thought the biggest change we would dramatically see when Justice Alito replaced Justice Oconnor was in the area of racial preferences. Famously said,r we are going to take a 25 year vacation from the 14th amendment. You can discriminate all you want against anybody who the government doesnt think is a protected Minority Group and we will get back to it and talk about whether it makes a lot of sense. I suspect Justice Alito does not share that discriminatory interview of the 14th amendment. Inwill find out this term the fisher case, which presents against the issue of racial preferences in the issue of higher education. It dramatically revisits what Justice Oconnor did in the michigan case. There are a number of ways you can restore peace to the protection of nonminorities without affirmatively overturning the michigan cases. Simply by saying things like, if you are invoking a Critical Mass in diversity and these other buzzwords, maybe you could supply evidence achieving a 14 minority representation relative to 10 minority representation actually has some educational value. The cousin is complete absence support thato counterintuitive notion, as long as they have demanded proof, as opposed to slogans, i think they could go a long way towards restoring the racial neutrality command of the constitution. Again, fisher is an interesting test case because it came up a couple years ago. The Supreme Court waited nine months to issue a opinion that literally said nothing except, why dont you take another look at this . The Circuit Court took another look and send it back up. I think it will be interesting to see if they actually restore some teeth to the equal protection analysis. In the statutory realm, there have been some very good decisions in the Voting Rights act. The big surprise and a step backwards, which was attributed to Justice Kennedy, he prohibited fair housing discrimination. That was a surprise to me because at least in the implement and a voting area, Justice Kennedy had seemed to understand and adopt the is just another word for racial quota. Turn in statutes that say, you must not take account of race, for standards that say, you must take account of race. By saying,s opinion dont turn this into a quota. He issued a bunch of regulations that did turn it into a quota a week later. Again, i do think, for the reasons i just articulated, the courts decision in fisher this year will tell you a lot about how they will handle racial issues Going Forward, both in terms of the statutory and nonstatutory context. The final, big step forward in terms of jurisprudence and adhering to the rule of law over is the secondars, amendments right to own firearms. The actual, practical effect of that opinion we dont know yet. They have not taken on a follow along case to sort through the judicial scrutiny given to it. It was clearly a huge originalist win and closely divided court. Probably theinly best thing this court has done. On the bedside, obviously last years decision in the samesex marriage case was about as low as it could be. The provision that Justice Kennedy evoke says, you cant life, excuse me liberty, or property without due process of law. That means, people of the same sex must be able to marry. He supported this keenly attend textual analysis with latitudes that came from hallmark greeting cards. [applause] it really did not attend to be what we are usually accustomed to in overriding the democratic choices and five millennia of traditions. The one, and i obviously have a distinct prejudice on this, the other hallmark of lawlessness over the last 10 years was the case of king versus burwell, which i argued. In many ways, it was worse than the first decision which upheld the Affordable Care act. Out, youn was pointing could attribute that to a normal you could at least argue plausibly that this was referring to congress and they did not want to in a president ial election year, strike down social legislation. There was really no such excuse in terms of interpreting a statute. Plain language of the statute and having six members of the court was very reminiscent of what the court was doing in the 70s, particularly with respect to the Civil Rights Act in cases of weber. Then they said, north means north and south means west. I thought what we had establishd was to statutes that had some meaning of the plane meaning of the text. Constitutions change and grow. These are the policy choices of yearsgislature from four ago and there was no excuse, other than a naked policy preference, to change what the law meant to the opposite of what it meant. The other issue, and this is where chief Justice Roberts has departed most starkly from the rule of law, was the case where he upheld the constitutionality of the Affordable Care act. I try not to take either of these decisions personally, but fasciste of the conspiracy theories, you could say he departs from the text when we are not available. Maybe that will give us solace for future cases. The other areas have been lester maddox, in terms of their departures from the text. Have been less dramatic, in terms of their departures from the text. The life without parole context, where they are dictating to elected representatives from the state how they need to treat relatively young, or relatively mentally challenged, murderers. Another opinion from last term that again, is not terribly unpredictable in terms of its consequences, but was really a naked assault on the text of the constitution was the arizona redistricting case where they said legislature meant popular sovereignty did not mean legislature. Dayswas literally two after the king decision came down. Said howtice roberts, do they distort the word legislature, proving yet again that the Supreme Court is an irony free zone. Again, confirming the theory. Those are the big picture areas. I think the biggest difference between chief Justice Roberts for example, and the conservative members of the court, is the emphasis on incrementalism where he wants to take a step at a time. He has done that in a variety of contexts. And mayk a small step come back to it. The Shelby County decision striking down section five again. Prefaced by certain small steps. I am actually arguing a case this term. Is cast upon the constitutionality of agency fees from people who dont belong to the union on First Amendment grounds. Think i am not entirely sure why this should be a conservative principle that says incrementalism is scalialikeo eight approach. The point that always make is, in 1954 written brown v board of education to say that the black schools were clearly unequal to the white schools and upheld plessy versus fergusons law of separate but equal, but nonetheless struck down at these laws because they did not satisfy the plessis standard. The problem with that incrementalism is you are keeping in place a premise which is contradictory of the constitution. That cannot be good for the longterm development of the law and much less for the institutional integrity of the court. That is the last point i will make, picking up on stephens ambiguityt there was in Justice Robertsconfirmation hearing. You hear a anytime justice or judge talk about the court, as opposed to the law, that sends up a real warning because, just do law. Do it in a neutral way. Changing your view of the law, or modifying your view because you are worried about Public Perceptions of the thet, that can only invite notion that you are not neutrally interpreting the text and the legal materials in front adjustingt you are the scales to favor one policy view over another. That byong run, definition, decreases the institutional integrity of the court because it reduces the court to another legislative body where decisions are made based on whose ox is being bored, rather than neutral principles. It is too early to tell which way chief Justice Roberts develop. Ence will generally, it has been very favorable. There have been a couple exceptions to that. I am hoping those will stay in the anomalous category. If we lose the next election, it wont matter at all. Thank you. [applause] i am honored to be here. This society has been a part of 1982. Stence since i am a founding nephew of the society. I have been to many of these events and i love this organization. I will build on a lot of what mike said. I will move on beyond that to talk about the future. The title i have given my remarks is a question. I have a handout. What kind of law professor would i be if i did not happen if i may . There must be a test. About thenservative Roberts Court . The idea of marking the beginning of periods of the chief justice ship of individuals is convenient. Lets look at the personal changes of the past four years and ask, has the court become ideologically more conservative . Very much. Is no, not there has not been much of an ideological change. First, consider the composition of the court as it stood. Rehnquist, scalia, and thomas. You had a solid block of reliable liberals. David souter had crept left before finally lurching. And then, you had two swing justices, oconnor and kennedy. Prefer to call them weather justices. Weathervane justices. You had three conservatives, four liberals, and two swing v otes. And then you have the substitutions. The substitution of roberts for rehnquist. That is pretty much a wash. You have generally, the mainstream, consistently jurist replacing another. The switch basically ends up being the same. The vetoial change is for Justice Oconnor. Some say that is a little unfair. It is a double switch for baseball. They came in at the same time. We had this little episode that dominated october 2005 where flirting with a different nominate and then on halloween, alito was finally put forward. That is the period of change because it does substitute a solid conservative for a liquid judicial conservative. Or sometimes, a gaseous one. So, the net change is, you have swingfrom one of the justices to one of the more reliable camps. T is now 4, 1, 4 that makes a differences. Material changes are when you substitute alitos vote for oconnors vote. That is basically the list and michael did such a good job that i will bullet point it as quickly as i can. My theme is that the changes have been few and far between. They have been relatively few conservative victories. Have been interspersed between a lot of important liberal victories and defeats. A quick canvas of the cases, and these are all cases and which kennedy leaned right and oconnor less so, and the change from oconnor to alito. One is campaign finance. The switch from mcconnell to Citizens United is probably the single most notable change effected. There has been an incremental shift in abortion. The court upheld on the narrowest of grounds, the federal ban on partialbirth abortion. These are baby steps. Moving into the right direction, but so incrementally it is hard to see. Religious freedom. There has been a very important change. Unanimous Supreme Court decision, which i think, undermines and principle the premises of the Employment Division versus smith case. It will hopefully, become very important to the future. There is a panel devoted exclusively to this. The hobby lobby case was extremely important and its interpretation and recognition of broad rights of religious freedom against government regulations. A little mixed result, as mike said. I am one of the few federal society heretics that actually was rightly decided. It does not conform with my policy preferences, but i think the best interpretation of that we will talk about that. One important thing to note is, even in defeat, there is a conservative victory for federalism. The court did adopt a narrow interpretation and put meaningful limits on of the clause and had a dramatic new restriction on the scope of the spendinge governments power. I think that is meaningful. Thexecutive power, Regulatory Group versus the epa case. T is huge for precipitant that is huge for separation of powers. It says, the president cannot one thelaws of Congress Laws dont say what they want. It is a scalia opinion and it is brilliant. It is one of those sleeper victories. This is the litigation practice group. Civilday job, it says professor. There have been meaningful changes in the law governing pleading, standing, and territorial jurisdiction. This has a Practical Impact in changing the way the patient is conducted in federal courts in the future. These victories have been few interspersed far between. Some of the most awful cases have been the war prisoner cases from the bush administration. Indefensible decisions for the samesex marriage case. The four democratic appointees on the Supreme Court are a solid block. When kennedy joins them it is not in any meaningful sense the Roberts Court it is the Kennedy Court. So i would like to conclude with lessons for the next conservative president. Or at least the next conservative president who cares in a meaningful way about the constitution. Sort of look forward hopefully cheerfully to the next ten years of the Roberts Court. As jan mentioned on inauguration date 2017 there will be three justices in their 80s, one in his late 70s and there is going to be an opportunity for some meaningful changes and those will be important. Ideology matters. Judicial philosophy matters. The Supreme Court wields substantial government power and what your philosophy is as to the proper use of that power makes a huge difference to the country, to the future of the nation, to your faithful stewardship of the constitution, and sometimes its literally a matter of life and death, who you appoint to the Supreme Court. It makes a world of difference, for example, that we ended up with david suiter rather than edith jones or Lawrence Silverman in 1990. If you have edith jones appointed by a republican president i think rowe versus wade is overruled by a vote of 63 or 72. Its a difference if you have this conception that in terms of saving millions of lives. Now, it makes a huge difference whether in 1987 you succeed if confirming a robert bork or a Douglas Ginsburg instead of ending up with an Anthony Kennedy and makes a huge a ference whether you have sotamayor or a sutton or a sessions. It makes a difference whether you have a kagen or a cavanaugh or a cruz. Ideology matters. And i know the a sotamayor or objection will come. And here i would like to get back and forth with steve on it. Sometimes you cant really know in advance judicial philosophy. And sometimes its considered it is per to ask or that not politic to press that position. Answers are yes, you can know judicial ideology in advance fairly relibeably and yes it is proper and necessary to ask. Of course you can know how these individuals will be as justices on the Supreme Court. I dont think its bragging or ny sort of special skill but really give me ten minutes with a prospective nominee and i will tell you how they are likely to be on the Supreme Court. I will not have everything right but they will not disappoint wellsettled expectations based upon an interview that puts straightforward questions to them. You can tell in advance the difference between a scalia and a suit or and of course its proper to z these questions. Sometimes we fettishize this idea of judicial independence. Judicial independence in the constitution is a function of life, tenure, and salary guarantees, which send us supposedly the assurance of decisional autonomy once someone is confirmed. The other side of the constitution is that it enshrines an appoint and confirmation process as part of the separation of powers and checks and balances. I think it then becomes the obligation, the constitutional duty of the president considering a nomination and the senate considering whether they confirm what they be the proper views at their disposele. I think its possible to know what adjust. Ments will yield and i think it actually favors the most extreme version of litmus test. I think if you give me just one question to ask an individual justice that would yield the maximum amount of information about their judicial philosophy, say what do you think of rowe versus wade . They will tell me whether they think the judges can tell nstitutional rights, their theory of precedents, their theory of the relationship of judicial power to legislative power. It is entirely appropriate, i submit, as a constitutional theory of matter to push these questions forward and that that should be obligatory on the next president. I am going to leave it there so that we have some time to go back and forth. But thank you very much for your attention. [applause] we will have a period of questions and answers. As chairman i appoint myself to start. First, steve, we have the two aca cases. And the interpretation that what is not a tax on monday is a tax on wednesday in the first case. And that the word state includes the word federal in the second case. And then we have the arizona case where the word legislature includes a nonlegislative enactment. Question. End . Xtualism now the and did then judge roberts give any indication of what his views were on textualism when he was confirmed . Thank you. I really dont think he did. Transcript. Earing you get some hints. As i said, it is a little odd to go backwards to look because you find yourself looking for it because you dont know how time. Eceived at the as i was reviewing and thinking back on it i dont remember textualism squarely being teed up and there was no significant discussion about what that would look like other than you start with the text of the statute and then you have this conversation of legislative history. But the extent to which you would focus on the text and what the words could mean Something Different its not squared up. We had no discussion that i could find of taxling power that anything like the first aca case. So these questions dont get teed up and part of that is because well, to your wasnt. , no, that and its odd looking back that it wasnt. I also think that these look, these hearings take place in a certain moment in time. Kilo had come out a few months earlier and there was a lot of discussion. Its always the more recent cases. So insofar as the Commerce Clause is discussed it was all the rage case being discussed at the same time. What does that mean . And people are thinking about it in a very narrow sort of way based on the last case. Everyone is fighting the last war in terms of all of this. So to answer i guess one question but i answered a second one which is to say i know its the senators are not they dont seem, i wont say equipped. But they dont seem inclined to engage in a sustained conversation about specific doctrines and interpretation. Very difficult for them to do that in that crossexamination sort of format that you would have to do. So as a consequence, as i said in my remarks, they dont get elaborated upon very much. A nominee to e as sit there and have very simple sorts of views about not simplistic but simple and straightforward and clear views without ever having explain the contours of how you get there. Just to supplement the point, i dont mean this disrespectfully but lets face it, most members of the committee are not jurespru dential giants. And then theres just the normal. You have a republican nominee. The people who would be most interested in assuring that this person was conservative would be the republican senators but theyre not going to engage in a hostile crossexamination of a president of their partys nominee. Third, look, john roberts, sam alito could run circles around anyone who did try to do it. Roberts gave a superb performance at confirmation but i think alito, i mean, he enveloped the committee in the ism and he h of word would ask hostile questions. And he would be, yes, and then theres smith v. Jones. Thats how he completely diffused them. So the notion that some democratic senator, particularly joe biden, is going to figure out same alitos Juris Prudence is just unrealistic. I want to hear more from you about how you figure out who is going to be you know. Because think about how john roberts answered the question aboutrow and was it settled law. He said yes. Subject to principles of starie desice sis. I mean democrats are like ok ig like that. Yeah. And republicans are like yes. They heard Different Things. And of course john roberts said absolutely nothing. I mean, that means thats meaningless. But what people heard in that, Different Things because to mikes point theyre members of the Senate Judiciary committee youve got 26 plus joe biden. An example. I am not going to quote the whole quote here. But i commented on this. No one laughs but congress members. This is a very funny actually moment which was that senator humer was completely and totally frustrated with the current u. S. Attorney from new york sitting right behind him who had planned out this very careful crossexamination and tried to get at him and figure out what it was he thought about things. He said this is exassprating i ask you what your favorite movies are and you say i like comedies and dramas and female leads and male leads. And he was exasperated. And what happened was that just to complete the joke part they ran out of time. And senator specter was not inclined to give senator schumer any more time. Because they ran out the question was posed and it wasnt answered. And there was a little bit of back and forth whether he was going to answer the question and judge roberts said im happy to answer the question. Dr. Ziving ao and north to northwest. And schumer was very angry about it. I was sitting across the dais at the time and watching because they had really tried really hard to figure out how to pin him down and how to get enough information to be able to figure out more about his judicial philosophy, where he would in their case they want to know how youre going to rule on a case. And here they thought they had him. Just slipped right by. And then when they got called on a little bit he made a joke about it. But at the same time, again, there was not a joke for senator schumer, it was not a joke for the others on the other side because they were very frustrated in not being able to draw it out. Im not sure that the senate confilmation hearings are the best method for drawing out judicial ideology. The place you do it is in one on within conversations between people who actually understand these issues and understand the right questions to be asking and to be looking for. Part of my critique is the way the administrations, at least in republican administrations, have seemingly failed to put direct simple straightforward questions to get sat judicial philosophy. You dont figgetyur that out in the interviews. Theyre going to lie. No. I did Reagan Administration judicial screenings. Heres how it went. Hi, how are you . I think rowe v. Wade should be overturned. Good. Would you like some coffee . There isnt anybody who is going to say i think it was correctly decided. These guys have either engaged in public law in the Justice Department or state attorney general or on the bench. And thats how you know how they decide. Nd suiter was a completely selfinflicted wound that was quite obvious when we did it, when it was done. And so i dont think its that hard to tease out conservatives from nonconservatives. I think doing it in a cruisible of a white house interview process is just quite difficult. And if you think about Justice Alito he has that track record. Bill kelly concluded he had never written a wrong opinion. And his confirmation hearings i think can be something when you think and look forward. He was the big fight. Thats right, he was nominated on halloween, the democrats, oh this is scary, its a trick on the american people. All that stuff. He was the big fight. He was going to be replacing the pivotal vote. There was a track record. There were opinions there were memos, princeton. On and on and on. And his performance in that hearing was so masterful. He was better than roberts. And in the hearing. When she started crying you couldnt have scripted that any better. The fight went out of the room. It was like they were ready, they were going to beat him, to defeat this nomination. And they never were able to strike like get a spark. Never. He was so i think that is the by the way, sam alito did not read one word of the briefing books that the white house prepared for that hearing. That was all sam alito. So is the lesson i think, if youre thinking about Going Forward and getting that nominee confirmed is track record. Although that tends to be Appellate Court judges. But also thinking about the nominee at the hearing. Mean, robert bork could well be on the Supreme Court if there has been nick reth gum at the time. Hearing, he was or if we sent him up in 86. We still have the senate in 86. He would have gotten through. And scalia turned out, sailed through. So little quirks like that it. Itely affect let me interrupt for a moment. Well have to close at 1 45 and we left some time for questions from the audience. So if you have some questions please stand up and go to one of the microphones. And when you ask a question, identify yourself and also identify the person if you have one who you wish to answer the uestion. The specific is, do you think the decision in hobby lobby necessarily drives the results for the new Little Sisters of the poor case . But the larger question is, does the Roberts Court ever move into a position where it doesnt merely use the bill of rights as a shield to give carveouts to certain groups and starts to use it as a sword and say no you dont get to do that, congress, and the president. There is no power for you to do those thing that is you purport to do in some portions of the Affordable Care act, in articular . Great question as to whether hobby lobby dictates the outcome in Little Sisters of the poor and all these other contraception question as to wh hobby lobby dictates the outcome in Little Sisters of the poor and all these other contraception abortion band aid cases. So. Answer is i hope but it all depends on what Justice Kennedy thinks. Its ant ni kennedys world and were just living in it. As to whether or not more broadly the Supreme Court will move to a position of using religious liberty as a way of disqualifying whole things that government does, i dont think so. I think the nature of the argument thats made for a broad understanding of religious liberty is that the right to flee exercise of religion gives you the right to exercise religion in some respects differently from the rules of the government generally imposes. It is your individual freedom from government compulsion but usually does not entail the right to keep the government from otherwise doing what its oing to be able to do. Justice alito recently spoke to a Dallas Federalist Society gathering. And he mentioned his distress with some of the results in free speech cases. He mentioned well, of course was the lone dissent in snyder v. Phelps and he also mention it had crush video case. He would like to see a distinction drawn, it sounded as if he were saying, between selfexpression, unlimited selfexpression and free speech. Do you think that his position and encouraging this distinction, that he will be influential with the other conservative members of the court . And what current controversies in Society Might be decided differently if this becomes the ase . No one else out there wanting this one. I think that Justice Alitos narrow interpretation of freedom of speech in those cases really does make him an outliar within the court. Its not something he does very often but he does have in that aspect the least pro freedom of speech position of anyone on the court. Generally, though, he is an important and reliable voice for freedom of expression, free speech. He his dissents in the Christian Legal Society versus martinez case was a powerful defense of freedom of expression and of freedom of expressive association. Freedom of groups to define their membership and identity. I think thats one of the important losses during the Roberts Court era that hopefully will be overturned in the future. So just a footnote. I think Justice Scalia is less libertarian in circumstances where the speech doesnt strike most people as speech likely sorry. Justice eighto. Like stepping on puppies heads and violent video games and things like that. Which barely cross the threshhold to be expressive. And i think what Justice Alito is arguing for is some kind of commonsense ability to protect at least vulnerable members of society like kids from those sorts of destructive images. Going to ink its garner a majority of the court. But i think to echo what mike just said is a very firm advocate of the First Amendment in context where were talking about real speech and particularly in areas where he thinks theres a chance for the government to engage in either subtle of expression viewpoints where hes very aware of the notion that speech that departs from the norm can be burdened. All right. Next question. D. C. Attorney. I have a question for steven and maybe janet. Historical question as we know roberts was initially nominated for a spot and then rehnquist passed away and he was renominated for the chiefs spot. Was there any conversation given to keep the roberts nomination as associate and to elevate Justice Scalia to the chief spot just as rehnquist himself was . And you would still be able to get him in there as well . The senate is remarkably, has very, very Little Information as to whats going on on the specifics of the nomination side. One assumes that they do. There are a handful of members off line ve conversations but they keep it as a purely member level. Ut you rarely hear it. My answer to that is no and there wasnt. And scalia did not appreciate it. I think that i dont know that he would have taken it. Now i think he would my answer to that say and he has said that he enjoys the role he has. It allows him to be scalia in his dissents he can be outrageous on the bench. But no. Whats interesting i think, another interesting question when you think to your points is everything has to kind of line up a certain way. Its kind of like getting struck by lightning getting a nomination to the court. And everything has to line up. The senate has to be in the right mood. Whose going to get that nomination depends on if republican ors democrats control the senate. And in this case to me the fascinating question is if rehnquist had stepped down when we all thought he was going to, and really he should have, would john roberts have been the nominee. If rehnquist had gone first. And my guess is no. But i think when the president saw roberts performing as he did and then with rehnquist on the eve of hids hearings passing away, he had kind of been tested so it was easy for the president to move roberts into that spot paving the way then of course for that legal power house Harriet Myers which no one is mentioning her name so i have to throw it out there. But then of course getting Justice Alito. But i think the court would look quite different if rehnquist had stepped down. I think meyers is the most brilliant in american history. Lets throw hair yet out there for a few weeks and then slip alito in. I just high stakes poker but i have to give him credit. Ok. In his dissent, roberts criticized, i think he named the new york case more than ten times. Thats a case that more and more conservative legal scholars seem willing to embrace. For the panel is what role do you think that case will play in determining the next appointee should a republican win the election in terms of is what role do you think that case will play in determining the next appointee should a republican win the locker . In terms of i apologizd i would say zero. I just dont see anybody on the court including Justice Thomas going towards a notion of substantive due process that gives the same kind of protection to abortion to economic rights that has been given to abortion and that sort of thing because they think, in my view correctly, that lock never was wrongly decided and that while economic regulations where we see prevalent in Todays Society is really stupid, that the constitution doesnt deprive states of federal ra governance of the ability to enact really stupid economic regulation. Last question. And to the rear microphone. Some of you talked about Citizens United. What is your sense of this in cases like that mccutchen, Arizona Free Enterprise Club Citizens United wisconsin right to life. Who is the swing vote . Who is the last one to come on board . Well, i think you need to take those individually. We all know that there was a famous dispute between Justice Scalia and chief Justice Roberts about wisconsin right to life. Again, scalia takes the approach that you need to destroy the village to save it. Chief Justice Roberts takes the village approach keep the structure there but make sure it doesnt really mean anything. As you can tell im sort of on the scalia side of the debate that if theres a fundamentally if theres a president thats fundamentally incompatible with First Amendment rights then it should be cleaned up not through this incrementalism step. So thats a long answer to your question which i strongly suspect in light of what the published opinion said that chief Justice Roberts was relubblingtnt to take the steps that they ultimately took in Citizens United as quickly as Justice Scalia wanted him to take it but ultima c
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