Transcripts For CSPAN Public Affairs 20130907

Thates a thats a kind of funny sentence. For Justice Breyer, you may hear hat all the time, but not if you are sitting on the massachusetts court. I think the reaction did take me by surprise. Do you think your experience growing up at in apartheid south africa strengthen you in anyway for the kinds of courageous could positions you took on the court . No. [laughter] i mean, when you become a judge, you bring to that position your entire life history, and when you are sitting on the court, you work very hard to put aside your personal views. And so and gay marriage really was not part of my thinking in south africa. In fact, gay marriage had not been part of my thinking in the United States. So i did not make a onetoone connection. My life had been involved with issues of race discrimination, deeply involved in issues of gender discrimination to some extent, involved in issues of this ability law, but i can recall and i do not say this proudly, but looking at the extent of how much things have changed, when i was the general counsel at harvard in the 1990s, i was asked to come and speak to a meeting of the samesex of gay and lesbian alumni of harvard university, and somebody said, the conference was going to be held on the anniversary of the stonewall rebellion, and i had never heard of the stonewall rebellion. That was pretty astounding for somebody who had been very involved in the equality. I see that as an historical fact and not because i am so i think gary marriage just was not on my agenda. Justice breyer, i do not know if there has ever been a time when Public Opinion has changed as broadly and rapidly perhaps as in the case of gay marriage. And i wonder if you could comment a little bit about the role of the book opinion at this on the role of Public Opinion at the Supreme Court. You were in the five votes overruling or declaring doma was unconstitutional. It is hard for some of us to believe that even as little of go as one or two years the Supreme Court might have come to that same conclusion. I am sure you say it probably would have, but tell us about that. The truth of the matter is i do not know. That is the truth. And margie just put this very well. One, i do not know. Two, she said exactly what i think. Of course, what you are trying to do is decide the matter on the law on what is now, i look at the briefs, i look at the law, i try to get it right. No, my entire life is there in the open cases. By background of course matters. No, it does not matter. Perfect. And you find a judge who says he does not think that they do. Of course they do. And the third way and why this is such an interesting case in this area but to me, you have to think of loving vs. Irginia. It was the miscegenation case, interracial marriage. The question of whether a law forbidding interracial marriage was unconstitutional, which it was. The court had decided brown. Frankfurter said do not take this case, and he did not. They did not take it for quite a while, and eventually when things had settled down some, and it was clear that this integration was going to end we thought then they took the the case, loving vs. Virginia, and they said it was unconstitutional. There is discretion in taking the case. Was frankfurter right . That is something that is much debated. Personally, i have read about eisenhower and little rock and how important i think that was taking those thousand paratroopers from fort bragg and sending them to little rock and escorting the black little rock nine into high school. Open up. The freedom riders, Martin Luther king. Endlessly. We have lived through that. The most important thing was to get this thing of desegregation accepted. Was all that there was gay marriage . The most important thing was to started. Esegregation was all that there was gay marriage . No, it is not there. When people say they are gay and meet people who are gay, they are friends. I think you had a hand in that. But it is not the same thing. But nonetheless, you are asking me, suppose we really had a problem about whether this would be accepted in large number of states and people go up in arms and you think about all these things would the court have decided to take the case . Well, i dont know, do i . I know, i did live through what we did live through, and of course we are going to take it, and of course all the lower courts who had decided this said t was unconstitutional, and if you sat there as i did and read the briefs, i think and how can i prove it. I cant. I think most people would come to the conclusion, when you see the harm the law is causing, and you look on the other side, and im putting it not in constitutional terms, but i can see this directly into the constitutional problem of equal protection. I wont get too complicated, to say whats your justification for this . A little skimpy, said the ajority. A little skimpy. A little skimpy on the reeds for classing these one thousand statutes in this way. All right, so i read to those respected of course it would come out the same way if they had taken it sooner. So there we are back to margie. Of course not. I am glad you took it. Let me ask a different kind of question. You have often written about perhaps your next book is going to be about the Supreme Court in a global context, and the topic of whether or not foreign law, foreign judgments should inform american courts. In reverse, what kind of effect do you think that opinion might have in other countries . Again, i do not know. There i do not really know. How do i know better than people who live in these countries or go there more often than i do . It might. It might not. I cannot answer that question because i do not know the answer. Better than anyone else. What do you think . I think one can at least posit an answer in the sense. We in the United States forget our constitutional form of democracy was enforced by a court was unusual. It was not followed by most of the world from 1780 until 1948 in germany. People often look to the United States. What has happened around the world, increasingly in the postsecond world war era, more and more countries turned to what i call the american system, a written charter of rights. Why . Because we did not like the way parliament was working in germany, for one, and quite a few other places. When you begin to have models that are similar to the United States, you begin to look at the United States courts, but you also look at other courts. If you are in south africa or canada, two englishspeaking Constitutional Courts, they look at our opinions and they also look at canadian opinions and things from other of special ourts. From other Constitutional Courts. It is not really helpful when you are in america to look at other parliamentary courts. It is not helpful when you are a parliamentary system, because it is a different system, and i think the United States continues to have a quite a degree of influence, but it is not the only influence, not the only influence, because there are wonderful judgments that come from other courts. From my point of view, when i was sitting on the supreme judicial court, i always enjoyed looking at other courts that are functioning and are doing what ur system is doing who are not functioning, and looking at what our system was doing. It was not helpful before 1987 in canada to see what the parliamentary system was doing. It was helpful to me to look at judgments, but i follow them, of course they were helpful, yes, they were helpful, and i think it always will be. Anywhere in this room is as capable of answering one question as i am, which is the headline is, Supreme Court strikes down the antigay marriage law as unconstitutional, and people react to that all over the world. If youre asking a question of how the lawyers will react, the awyers will read our decision. Now, our decision is not talking about what how the lawyers read the decision. Her decision is interpreting the massachusetts constitution and whether they have to have to treat the gays the same as respect to marriage as the heterosexual system. Our question is a different question. Our question was is a federal law in this area of marriage, which goes to a thousand statutes and deprives people who are lawfully married who are gay, of federal benefits, such as 300,000 in Tax Deductions to them, is that consistent with the constitution of the United States . And they will read the opinion and they will see theres a great deal of emphasis in that opinion on the fact that it is primarily not completely, but primarily up to states to define what marriage is. Family law is a matter of state law almost entirely. And so the federal government was intruding here in an area that is primarily states. This is how the lawyers will look at it, and you say, will it make a difference . I say i am not sure, and you see why . By the way, since i pointed out which i normally point out to the 10thgraders what her court does and it is important they know this in the 10th grade law in United States is primarily almost 90 , 95 a matter of state law. Of course, marriage law is 99 state. And you go through tort law or criminal law or business law, and you will see primarily state, primarily state. Environmental, education, you name it. So what she is doing is which is what i tell the students, and it is why if you want to make a difference in your community, dont read the headlines in the new york times. Go find out whats actually happening in the law, and go back to your communities, and ork there. That is why she can do that. I want to give the audience a taste of that, because the latest figures i have are 2010, and i say this with greatest respect, if you took every case that was filed in every federal court in the United States, trial courts, United States Supreme Court, other than bankruptcy, in 2010 there were 1. 2 million cases filed. In state courts, trial courts, intermediate, judicial courts, excluding traffic offenses, guess 48 million cases. O he gets to pick [laughter] she is including traffic tickets. No, no, no. 48 million cases. In a funny kind of way, im afraid that Justice Breyer is using a different object, which is cases bubble up. Theres so much happening. Of course, we are a great nation and we are one nation. But i want to tell you, i want to tell you, massachusetts and north dakota hmm not a lot in common. Great chief justice. I love the chief justice. It is just different. Massachusetts i do not want a good back to the gay marriage case all the time but massachusetts, we have adoptions, we had the state placing foster children in samegender couples. He had governor wells who wanted to have a huge Teaching Program in middle schools about massachusetts was just different. And so gay marriage in a sense sat comfortably in massachusetts, and i do not know how it would sit in north dakota. Lets go back to another aspect of individual liberty and freedom. There has been a lot of discussion the last few weeks around the country of the relationship between individual freedom and National Security. You have actually written a great deal about this. You do not face the same kinds of issues that Justice Breyer faces in the Supreme Court. You have written quite forcefully that judges must insist on Government Accountability as vigorously in wartime whether declared war or war on terror as they do any time. You say that democracy must fight sometimes one hand behind is back. Even though democracy has the upper hand. I wonder what you see as the implications as no longer a sitting judge and not facing these kinds of questions about these issues in the context of things Like National surveillance or detention at guantanamo bay. On my court we did not have as many decisions of issues like guantanamo bay, but i would say this i grew up in south africa during the apartheid years, and almost everything that i detest it was done in the name of National Security and it had a racial overtones to it. The reason why people were banned, put into prison, white people disappeared in the middle of the night was because the south africa and government articulated that was necessary to maintain national ecurity. So i think i bring to my view of the world a profound sense that you have to really test it all the time. And of course, i think what has made this country such a great country, a really great country, is transparency in a government, which is why i think people can criticize judges. It is not comfortable, but they have a right to do it. They should know how we go about our business, how do courts elect cases. Transparency is important, and knowing what our government does is terribly important. There are hard questions. Bviously, the United States in 9 11 suffered the kind of attack on our security that was almost unprecedented, certainly for us, and so that has changed the view. But i tend to think one should always be skeptical when the claim of National Security and push for transparency and be careful, be careful. Justice breyer, how should a judge react when the executive branch comes to you and talks about National Security and issues that judges are not trained in and when the country is at war, when lives are at stake, is it a different posture you take when they come to you with those look, the president and congress are in charge of the security of the United States. The judges are not. That is constitutional. You can trace it. The judges, however, are responsible for protecting individual rights. I mean, their first and foremost that is what they do with unpopular people you try to infringe a protected right for an unpopular person, i am sorry, that person is entitled to the same rights as others. These two collide in that situation. It used to be thought i found out somebody told me cicero said and i cannot remember it in latin so ill get it all wrong. Speaking in latin] like my translation i said when the canons roar, the world falls silent. I said that once to an audience, idiot, the , you romans did not have canons. [laughter] we have changed from that. Her attitude is right law applies. Now, that is the beginning of the process. Not the end. If you look at many of the protections of human rights, for example, privacy, reasonable searches and seizures, it says no unreasonable searches and seizures. Ok, what is reasonable . That is the argument. We have one tremendous help in this, and it is not the government. The Government Health like any other groups of lawyers. One thing about lawyers they help. Why . Because the defense lawyer in this case, if it is a prosecution, the side against the government is undoubtedly going to ask two questions and these two questions are very helpful, and they focus the point shes making. When you see an ordinary protection being diluted because of wartime, guantanamo, or world war ii and the germans in prison camps and so forth or the ones who ended in the the first question, why . These are questions the israelis face all the time. And the judges ask it, and the lawyers ask it. Why . And the government better come up with a good answer. If the government says it is a secret, there are ways around that. You can show that to the judges privately. We cant even let the other lawyer in. Ok. Prove it to us. Still better to have the judges looking at it their way. If you cannot, ok, still better to have the judge looking at it. There are ways. They would look at it. The second question is, why not . If they show why, then the lawyer says, hey, why not do it this way, which as you get your obstacle. You can build the wall across jerusalem, says barak, the chief justice. Build it so you do not shut out the arabs on their farms over here from getting their water supply. Why not do it that way . Those two questions why and why not are very powerful questions. I would say remember what the justices have said. There is a hierarchy, and his two questions are dependent on what . Access to a lawyer, access to a lawyer, and i would say that the thing i feared most in south africa was that i would be arrested and i would not have access to a lawyer. You have to have a lawyer. So you learn to have a kind of sensitivity on things that are really going wrong. And the second thing is him access for the lawyer to a judge. Theres something terribly important about the adversary process. Remember that, too. They come in and they present danger. Onesided courts are not ourts. Onesided courts are not courts. Good luck. Justice breyer, you mentioned search and seizure, and you also had said you have some trouble with the dog case. That was a tough case. Particularly if you like dogs. Why was a tough . It was a question of unreasonable search and seizure. We divided 54. A policeman without a warrant who is standing in the street can look into your house if you leave the window open. That is your problem. He can do that. And he can go up to the front door, too, like any other person, unless you put up a sign saying you do not want them. Few people think about putting up that sign. By and large you can go up to the front door if you are policeman like anybody else and that is not unreasonable because you have all kinds of people going up to the front door all the time. Now, suppose the policeman comes up to the front door with a dog. Everyone likes dogs. What is wrong with that . That happens all the time. This dog is trained to sniff marijuana inside the house. Does he have to have a warrant or not . People come up with dogs all the time. But not marijuanasniffing dogs. Well, how finely do you want to cut this . Is it unreasonable or is it not unread reasonable a. What are you going to do an apartment complex when the person who called you in was the next door neighbor. You see, you go through all kinds of possibilities, and i found it is a very, very difficult case. I tell you what, i ended up deciding for the dog. [laughter] justice marshall, you wrote about a case in the first judicial massachusetts court. A man named clark walker. Walker. Tell us why he is so significant. The massachusetts constitution of 1780. The oldest constitution in the world, was being enforced. Unlike the federal constitution, it starts with all men are born free and equal. It has changed and says people. But it did say all men are born free and equal. Assachusetts in 1780 had slavery. We forget. It is not always the south. Five judiciary were appointed by the government, not the king. Comes before the court. A brilliant lawyer. Where by lincoln he went on to become the United States attorney general. He says, excuse me, it says here, all men are created equal. The case involved the desertion of a slave and he comes back and his owner beats him up. The Supreme Court in 1783 said that slavery is unconstitutional. Massachusetts has not had slavery since 1783. Now when i was in south africa. There were only two cases i knew about in the United States. I didnt even know the courses were different. One was the clark walker case. Wonderful case. Bript, wonderful case. And the second case was, of course, brown vs. Board of education. So when wells nominated me to this court, such an incread credible privilege of honor, again, it is wonderful to teach about the case because judges were the same five justices who were there beforehand. I mean they werent revolutionaries. Yet, when you come before a judge my experience has been all judges try very hard, very hard, to look at the language, to see what it means, and try their very best. Here we know that the scheef justice was a slave owner. So this is pretty close. This is pretty close. We like judges, basically. And my husband loves sleeping with a judge. [laughter] and weve on to Something Else now. [laughter] , nelson e marshall mandela has been on everyones mind around the globe. You obviously knew him and knew him well. Is there an episode or anecdote that you could share with us evokes him in your mind . I want to mention two, and ill make them brief. South africa had been through a constitutional process. Nelson mandela was then president. There was a case brought against the African National congress. His party, overwhelming majority party, to the new constitutional brand new Constitutional Court in south africa. The court ruled against the African National congress and senator mandela. It was a stunning political defeat for mandela. Stunning. He went out onto the steps of parliament the next day, and he said in that wonderful voice of his today is a victory for all South Africans, because it shows hat even if you are a powerful political party, the rule of law will prevail. And i thought, you know, we know that hes a man of great dignity and generosity, but for me, to be a political leader on a very difficult constitutional situation, that is my favorite moment. And then another slightly more personal one. A friend who is on robin island with mandela taught me this anecdote. He said he and Nelson Mandela shared the same birthday scomprks as prisoners on robin island they were allowed one present at christmastime. Many of the prisoners like black magic chocolates, they all liked ogdiva chocolates, mixed chocolates. Their birthday was in june. Every year mandela would ask for a box of chocolates and keep it in his cell and keep it to give for the other prisoner christmas. Thin the other prisoner would ask his wife for a box of chocolates. And he thought, he would think iti just took one and pushed around, and by the time june rolled around, he had a box of chocolates, but mandela on the 10th anniversary of the South African Constitutional Court, i had a chance to go there. I talked to quite a few of the judges. Theyre nervous because theyre making a lot of decisions he doesnt like. They dont know what hes going to do. Banquet that night. Mr. Mandela walked into the banquet. He told that story. He told your first story. You could just hear an audible sigh of relief from the judges and lawyers after he told it. I will say that resident observed every order obeyed every order. When people say to me, what is , ipening in south africa think [indiscernible] mandela made a huge difference in that regard. Im going to open things up to the audience her. Tos case that the media seem dismiss as insignificant because the court threw it back was the affirmative action case. I dont think thats how you view it, as insignificant. Explain to us what the court did in that judgment. It would require more time. There are two views of the constitution. The 14th amendment says equal protection of the laws means that the constitution is colorblind. You cannot discriminate in favor or against on the basis of race. There are a lot of good arguments for that. The other view is that the 14th amendment was put there to bring people inclusively into our society who had previously not been there. They had been slaves, and they were free. There is a difference between a law that matures mentions color and race, where it is trying to be inclusive, then a law that is exclusive, which is called segregation. Those two views or at law more in the law. Court, it is closely divided on that kind of question. First,ars ago there was an opinion that was simply a concurring opinion that people have taken into the law of United States since then. Literally. Me too action. Have affirmative but be careful. Dont do it too much, or go very far. No quotas, etc. But you cant can. His view was picked up in a case called bruder. Gruder. Yes, you cand that use affirmative action. Be careful you dont go too far. We hope that it will not be necessary in 25 years. I will leave lawyers to interpret that. Now, the case comes up again, the same issue out of texas. What will the court do . There was a lot of speculation. Gruder has not led to a lot of litigation. Would there be a change . Would they say no affirmative action . Said,members of the court grudde ris gruder is the law. So what do i say . I say, thats right. There we are. That is why i think it is an important case. Sometimes an important case is reaffirming a case which reaffirms another case. You said you dont like hanging in the minority. What a surprise. Onder if there are times you chose not to join Justice Ginsburgs decision. Are there times when you think it might be better, even though you feel passionately about an issue, to join the majority to be able to influence the decision and how it is written as opposed to sticking on a firm principle . Nobody likes to make an unprincipled decision. I would think about it in the following way. This is a rather big and deep question. Not thetitution is constitution according to Justice Oconnor, myself, or any other individual judge. Interpretation is not interpretation by an individual judge. Robe to a black symbolize the anonymity of the law. It is what the court says that matters. The court is made up of individuals who are serious, hardworking, and have somewhat different views of what the law is. Every member of the court knows that about his colleagues. You try your best to produce an opinion that will reflect the views of the court. You cant go too far. You cant sign up to something that you think is deeply wrong. In many cases, a judge is put in the position of can i agree to this . Other people think it is right. What changes have to be made . Negotiation, but not negotiation where tony sussman and i are working for president kennedy. It doesnt work that way. You still have to face the question, in a special kind of , of how do you get that majority opinion and what is it going to say . And sometimes with other judges. Ladies and gentlemen, lets we will have microphones for you. Wait for the microphone. Thank you. Mr. Justice, our political system has many problems. One issue that many people agree , that money has killed or is hurting our political system. How does the Supreme Court justify the corporations and pacs can contribute as individuals can . I dont want to persuade you. Says, congressn shall pass no law abridging the freedom of speech. Money is not speech. But you try running a Political Campaign without money. If you were to say, no money in a Political Campaign, you would have the incumbent [indiscernible] the First Amendment does have something to say about this. Probably the greatest judge this d,tion has had some sai dont get into the business of being a judge, saying this person should speak less so that person can speak for more. Road,ou start down that you wont know. There is no stopping place. That is what Campaign Laws do. They say, this person speaks so that those others who have less money will be able to have their voice heard more. Saying . Ee what they are thats not such a bad argument. To take the other side, i have he did not know what the world would be like today. We have to be able to draw the line somewhere. We have to let congress draw the line somewhere so that by he cannot20 million, shut the door on the people who only have 5 to give. Judgmentires ringing into the gate to decide whether the legislature is actually trying to keep the Playing Field balanced more evenly, or whether the legislature is trying to write the incumbent protection act. To be consistent with my point of view, and the view i had to in a casee majority, in vermont where they said nobody can contribute more than 100 in a Gubernatorial Election i thought that went too far. You cant even have a coffee and donut with a man trying to challenge the incumbent. Decisions that i am asking judges to make in order to further the oink of you point of view that you implicitly stated in your question, not so easy a question. Let me ask you about money in state courts, and its effect. The Citizens United effect at the next level. You were an appointed judge. In many states, judges are elected. How pernicious is the effect of money in state courts . Step,ave to go back one and its still the First Amendment. There was a case brought by an elected judge in the state who said, under the First Amendment, i should be able to say whatever i want to say. Me, i promise i will never vote in favor of the death penalty. , i will neverr me uphold an abortion law. Deals with state that is by codes of judicial conduct. The money for election of a kinds you cant say these of things, you cant take money from these kinds of evil people. The Supreme Court said, the congressndment says, shall make no law. That had a more devastating consequence. Cases theillion United States has a great system justice, but it can be in jeopardy. What is happening in state courts now, with elected judges, with the Supreme Court decision opening or closing down judicial codes of conduct and now the infusion of money, it puts us in a difficult position. I have dissented in that case. I have to be consistent in my point of view that the states do have the power to regulate what these judges will say when they are running for a judicial election. Same problem. Then we have to make these distinctions. I say, that is what we are therefore. It is a huge problem, just like tempe and finance is a huge finance is ampaign huge problem. There is a hand over here. Thank you. I would love to get your perspective on the role of state law versus federal constitutional rights, with respect to the individual rights. F immigrants it depends what you are saying. The 14th amendment says no person shall be deprived of life, liberty or property. It does not say, no citizen. The fact that it says person is important. In various cases, in various particular rights, they protect people who are not citizens. It does not mean that you cannot make any distinctions. You do see the nature of the problem. There are some protections, because it says person. For the states, it will be the state statutes. States can decide to give immigrants, noncitizens certain. Ights it is an area that is heavily. Ederally regulated over here. Thank you both for your Tremendous Service to our country. We all have great lives because of what you do. [applause] it was not that long ago that elliott would refer to you, just as writer, as the man who whoice ryder, as a man [inaudible] the Supreme Court. Could you talk about what it is , and howg on each side the relationship between the justices the personal relationship is fine. We all know that were not going to agree about anything. Never heard a voice raised in anger in a Conference Room at somebody else. People dont insult each other, they dont say mean things. It is professional. You state your point of view. Necessarily drinking buddies, but we might lay bridge together. Between the dissent in the majority, i would rather be in the majority. The dissent performs an important function. The first thing the dissent does it is improves the majority. Sometimes its which is. It switches. But no one who writes the majority opinion likes to look like an idiot. If someone with dissent makes a good point, you read that dissent and say, i will change my opinion. They do change. You never see the best points of dissent made, because they have been written out by the majority so theres no need to make that dissenting point anymore. You are seeing the failed dissents, those that did not change peoples minds enough. In a way, it is easier to write a dissent because you can say what you think. Nobody will say, it doesnt make that much difference to the law. Maybe people will learn from it in the future. The issue will come back and affect Something Else. Ofs a very helpful process having that dissent, those concurrences, and having time. Having time to think about what youre going to say, and revising it. Revising it again and again and again. That is true in every court. Seven. E nine is harder to work this with than seven. One of the problems that goes back to elect the judges with if constraints taken off the justices on the Supreme Court of a state, and i run to defeat him and itar, is a skunk and a makes relationships harder when you are on the court. Im seeing in cases around this country a fractionating of the collegiality. It doesnt have to do with elected judges. We have had elected judges since the 19th century. It worked well. When you begin to change the watch the fights that are very public among justices sitting on the court. Nasty. Inful, whenust dont have that you have a system like the u. S. Supreme court. Be careful. Remember, its in your hands. No, we dontay, want that. Let me ask one last question. I think im right that in thinking you observed on the decades. Two have your views about the court and its role changed in any significant ways over those 20 years . The first three or four or five, you are sitting there frightened to death. There is nobody to correct you, and will i do this all right. Chief Justice Rehnquist used to say after five or six years, you wonder stop wondering. You are doing your best, period. And then you do. David souters said, you are on duty all the time. That is true. Over time, it is a difference court. A justice said that. It is different people. They bring different skills and attitudes to the table. , we have morets discussion of some things. , there are four or five more decisions than there were now. Over time, you get to know the area of the law. You get to formulate sandra 3, 4, 5, 6ed to say, years is like putting footprints in the sand. You dont want to suddenly go in the opposite direction. Why not . There would be no control if youre not consistent. ,ou try to think out an area and then you try to follow where you have started. You are learning and developing, but you have guidelines. You are going to be not too different from the way you were at the beginning. More fivefours now. People get on well. There are different personalities. Its interesting. They are interesting people, and they are working hard and trying to do their job. You mentioned there are more decisions, and the importance of people accepting the court and its judgment. When there are so many 54 decisions, and when those decisions happen to be five people who are republicans and four thatocrats are democrats not always. The unusual threatens to become the usual. Its not always the same five. No, its not. As not so surprising as you think its not so surprising as you think. Justice scalia and i often do not agree. Why not . I dont think it is because he worked for republican administrations and i work for a democratic senator. Lawakes an attitude towards , which is that law should be made up of rules that people can understand. He is uncomfortable when you cant come up with a clear rule. A lot of what he writes is affected by that are a. I think life is complicated, filled with differences. You will find situations you never thought of. Be careful of saying something that will live too long. Much tot bother me so not have an absolutely clear rule, and i think you can teach by example. A lot of our differences will be about that nonrule. When you get into affirmative surprisinghardly that when people start on one road and think it is the right track, they continue down that road. As far as acceptance is got two pieces of advice for my father. One was, stay on the payroll. The second, do your job. If it is 54, it is 54. Hope, but those who know will go into it and they see people are serious and trying to do their job, and the court will earn respect for that even if it is 54. Ladies and gentlemen, thank you. [applause] [captioning performed by the national captioning institute] [captions Copyright National cable satellite corp. 2013] wilson was so intellectual. He was almost academic. He is the only president with a phd. Most of the books that have been written about him have been academic in nature. They have missed the human side of this man. He was deeply emotional, passionate, romantic. He had two wives. When his first wife died, he courted and fell in love with a woman and married a second time. He wrote thousands of passionate love letters to each of these men. This was a real, living, breathing human being. I dont think we have seen that about Woodrow Wilson. Bergs biography of Woodrow Wilson releases next week. Sunday night at 8 00 p. M. On c span q a. We bring Public Affairs events from washington directly to you, putting you in the room at congressional hearings, white house events, briefings, and conferences. Offering complete gaveltogavel coverage of the u. S. House, all as a Public Service of private industry. Tvpan, created by the cable industry 34 years ago and funded by your local cable or satellite provider. Now you can watch is in hd. Us in h. D. Conversation with another Supreme Court justice, ruth bader ginsburg. She talks about the Supreme Courts recent rulings on health care, Voting Rights, and gender equality. She discusses her recent officiating duties at samesex weddings. Posted by the National Constitution center. This is an hour and a half hosted by the National Constitution center, this is an hour and a half. [applause] how wonderful to look out on this sea of faces and welcome justice ginsburg. Im jeffrey rosen, the new president and ceo of this wonderful institution. [applause] i have been on the job for three months. I cant imagine a conversation i would rather be sharing with you than the one were about to have tonight. The National Constitution center is a very special place. Toare chartered by congress disseminate information about the u. S. Constitution on a nonpartisan basis. To do that, we have three missions. We are the museum of we the people, the center for pacific education, and americas townhall. We sponsor constitutional conversations. It is impossible to imagine a better one to be having than the one we are going to have right now. To ensure that we all enjoy it, please turn off your cell phones. No flash photography. Tonight i have the tremendous honor of welcoming a constitutional giant, a woman who has been called the Thurgood Marshall of the womens movement, the second woman to sit on the u. S. Supreme court, and a dear friend. Please welcome once more Justice Ruth Bader ginsburg. [applause] justice ginsburg, you have honored the Constitution Center by coming here. Im so thrilled youre here during my first month on the job. Think many years ago, i it was 1991, when you were on the u. S. Court of appeals for d. C. D c circuit circuit. Wife christinemy the great honor of marrying us. This is our 10th anniversary. We remember that day with great pleasure. You performed another marriage, which was a bit more historic. That took place in washington. Tell us about that. It was the first samesex marriage performed by a u. S. Supreme court justice. The marriage of michael kaiser, head of the kennedy center, to his longtime partner, whose name happens to be john roberts. Beautifulimply wedding. Of theh point for me ceremony was held in blackwell singing. And blackwell it was exquisite. There was lots of family on both sides. Two people who were deeply in love with each other, and were theiry able to make shared lives a lawful relationship. [applause] how did you feel as a justice performing the ceremony . . Hat did it say about america ofit is one more example what i see as the genius of our constitution. The question, who counted among we the people when , notonstitution was new very many people. Certainly i wouldnt. Certainly not people who were held in human bondage. Men, because you had to be a Property Owner as well. What our nation and constitution has become over two centuries. The idea of we the people has become more and more embrace of embracing. People who work left out, slaves, women, native americans out, slaves,e left women, native americans did not count at the beginning. An idea that was there from the you canequality look on every page of your pocket constitution. You will not find in the original constitution you will not find the word equal or that was even though the main theme of the declaration of independence. The word equal becomes part of the constitution in the 14th amendment. I see the genius of our , and how our society is much more embracing than we were at the beginning. I wanted to note that we , and you havepera recently been the subject of an opera. Over the summer, a music student has proposed a new opera, scalia ginsburg. [laughter] it tells the story of how these two people with very different personalities, one bombastic and one quite demure, are locked in a room. The only way to get out is to agree on a common approach to the constitution. [laughter] Justice Scalia has to go through certain trials. Its not easy. Hes not able to do it on his own. I come along and make it comfortable for him to succeed. Progress,is still in because the composer just graduated from the university of maryland law school, and he needed to take off part of the summer to study for the bar. [laughter] idea came to him when he was studying constitutional law andreading these opinions thinking, i could take these words and make them into an opera plot. Youll get the idea if i recite the opening words of Justice Scalias aria. [laughter] please do. It is his rage aria. [laughter] it goes this way. The justices are blind. , thean they spout this constitution says absolutely nothing about this. [laughter] the man clearly has talent. Npr similarly inspired words. So probably you failed to derive its true meaning proudly you failed to derive its true meaning. You and Justice Scalia have been longtime friends. You go to the opera together, spend new years together. Were nominated for the bench, they had just heard Justice Scalia asked the question, if you were locked on a desert island, who would you what to be with . He said, ruth bader ginsburg. You are dear friends. There wasnt much competition. [laughter] the alternative was laurence tribe. Us want to know, despite this friendship, there have been some serious constitutional disagreements between the two of you, most notably during this past remarkable Supreme Court turn the just ended involving Voting Rights and affirmative action and the defense of marriage act. Very strong words have been exchanged. How is it possible to maintain whenpersonal friendship you are really engaged in intellectual and constitutional conflict of such nature . Hallmarks of the court is collegiality. We could not do the job that the if wetution gives to us did not use one of scalias favorite expressions, get over it. [laughter] we know that even though we have sharp disagreements on what the , we have an means trust. We revere the constitution and , and we want to make sure that when we leave it, it will be in as good shape as it when we join the court. There are a number of cases. They are not picked up by the press too often. Justice scalia and i are in total agreement. Cases, theamendment one where nina was in dissent nino was in dissent. The question was whether the police, when they arrest someone suspected of a felony, whether they can take a dna sample. Majority said, dna is the fingerprints of yesterday. Dna iss dissent was, marvelously effective in solving unsolved crimes. It is being used to identify the arrestee the arrestee has been arraigned. We know who the arrestee is. Used to find out whether this person committed some yet unsolved crime. Thats all very well and good, constitution says that we are not to be subjected , thateasonable searches the normal rule is if the Police Suspect a person of committing a crime, the police goes to the magistrate, presents probable cause for believing this person committed a crime, and gets a warrant. When youhat is missing take a dna sample and run it through a computer and find that iterson has committed was a horrendous rape. I thought that was one of Justice Scalias most amazing defense dissents. It is a reminder about the necessity of lawrence war rants. Despite that important agreement, lets not underestimate the highprofile 54 decisions the court has been handing down recently. You have been quite vocal about this recently and have said in a number of places that if this trend continues, this will be a court that may be among the most active in history activist in history. What did you mean . An activist court is not at all hesitant to overturn legislation passed by the congress. Recent two very headlining examples, the Affordable Health care act passed congress, but the court the court held that the Commerce Clause did not go that far. The readiness to strike down a piece of legislation under the it waslause astounding to me. The worst case was the Voting Rights act case. [applause] that passed congress overwhelmingly. I think it was unanimous in the votes, and 330something in the house. If anyone knows about the Voting Rights, how it affects the system, i think the elected representatives have an appreciation of that that the unelected judges do not have. Despite the overwhelming majority in congress that passed the Voting Rights act, the court said, it wont do. The formula is out of date, so congress would have to go back the Voting Rights act that during johnsons tenure, it was renewed by nixon, es, and it wash the second bush that was the most recent extension. The court said, it wont do. That is an example of striking on a subjection that the people in the political arena are better informed about than the court. I want to ask you about all of those remarkable dissents. First, i want to know how extraordinary it is that you have issued them. I have known and admired you for a long time. It seems that in the past two years, you are on fire. You have found your voice. Youre sounding like my hero, louis brandeis. It is very galvanizing. Youre using words like hubris. You have wonderful metaphors about umbrellas and getting what. Wet. Before we talk about the substance abuse, what emboldened you or freed you up to express yourself so powerfully recently, anyway you had not before in a way you had not before . I had a good model for most of my years on the court. Justice John Paul Stevens was when we senior judge split 54. He was the most senior among the four. He was fair in his distribution of dissents, but did keep the major cases for himself. So its really a question of your role. As a senior associate justice, you have the prerogative when youre in the majority to write the decision yourself or assign it to the judge you think will do the best job. When youre in dissent, you can write the dissent yourself. How are you using this power . Are you trying to convince the four dissenters to all join the same opinion . Yes. Inave met with my colleagues the Affordable Health care act case. I think we spent almost three hours just talking about how the dissent should be written. I asked for any suggestions my colleagues have. The draft of my opinion before it circulated to the whole court. Easier for thech public to comprehend one dissent instead of four. We make a deliberate effort not to splinter. Sometimes it is unavoidable. For the most part, we can come thather on a dissent speaks for all the dissenters. There are important cases, or peoplesh v. Gore, did not understand what happened after the split came down where people did not understand what happened after the split came down. There was no time. The court agreed to take the case on a saturday. Briefly filed on sunday. Us wrote our own dissent. To meet and time say, lets put these together. Of the four liberals being united against the five conservatives, this picture is different than the one that chief Justice Roberts spoke about when he took office. He spoke about trying to avoid these 54 splits. Is that a tenable vision . Has he had any success . Will the court continued to issue the most important decisions by 54 . What he projected as termable in his very first the court was unusually together. That,r explanation for the first term of chief Justice Roberts was also the last term of sandra day oconnor. Year, his first year. There was more unanimity than we have seen since. Times itmber of in number of times, that the year she left us, in every case , had i was among the four she remained, i would have been among the five. Her leaving the court made an enormous difference. I teach constitutional law, i begin by telling students, dont imagine its all politics. If you think that, you will miss everything that is beautiful and constraining and meaningful about the constitution. We talk about Justice Oconnor being replaced. Is it all politics in these highprofile places . I think all of us would answer, surely not. Many times, i will write an opinion that would not be the law if i were queen. [laughter] we see this fundamental instrument of government. Ifferently trading, that if you wrote for me today, i will write for you tomorrow . That never happens. We have very different views. Lets take the 14th amendment, equal protection clause for example. Protectionequal. Uarantee extends to women inyou ask the question back 1868, when the 14th amendment ,ecame part of the constitution did the people at that time in vision that women would be envision that woman would be citizens equal in stature to man . The answer would be no. Equality idea, it is there from the beginning and realized by society over time. While i would say it is true if in 1868 women were a long way , but theng the vote we have the 19th amendment and they get the vote. We have a Civil Rights Movement that makes a quality guaranteed for race. Race, what it should have been from the beginning. All of that influences or drives my view of what the equal protection clause means today. When you tell that story of the expansion of a quality coming from constitutional amendments and the Civil Rights Movement and acts of congress, i think i begin to understand the passion of your defense in cases such as Voting Rights and affirmative action and health care. But talk about the Voting Rights that was perhaps your most extraordinary. The rhetoric was unforgettable. With attempts to deal voting discrimination resembled the hydra. Surprised that texas decided to lament the voter rights elon implement the voter rights elaw . No. We put that in the emperor left because we werent umbrella because we werent gaining way. Now it is a problem of what to do. Voter id laws, closing the polls early, putting them in inconvenient places. The attorney general has asked the federal court to require texas to get advanced approval before putting in place one of these political redistricting. Our sections two and three of the Voting Rights act which alternatives . Section three is the bail in provision. , one ofng rights act the reasons i thought it was unquestionably constitutional suppose the state that was in 1965, 1 of those states did not allow africanamericans to vote. , they hadhe years they wereeir ways and no longer keeping any people away from the polls because of their race. If they have a clean record for 10 years, they can bail out. Hand, if a state group weret in the required to preclear voting , those statesally or districts could be bailed in so that there was a way to take out political units that did not belong there, and ones that did. That was the mechanism that , but i dontided think there was anything said in the majority opinion about the bail in, bail out. Courts have imposed a high [inaudible] that remains to be seen. Requires a high degree of intentional discrimination. Even though congress try to lower the standard, the court has cut that back as well. Congress said it is discriminatory in effect, even if you cant prove intent. What the court will do with that is an open question. So much of the power of your dissent came from the need, as you said, congress legitimately concluded that preclearance by the federal government was necessary because unless you secondhallenge this generation of voting discrimination in advance, the hydra as you put it different forms. Devices was were brazen. There was no disguising what they were doing. In the old days,. Ntimidation of black voters even if they were able to get to the poll to register, there were people stopping them from doing that. Then over time, those crude devices past. Passed. More subtle devices emerged, such as putting the polling place in an area that is inconvenient for minority voters , or opening the polls late and closing them early. Making it difficult for people who have jobs to come and vote. , more subtle, more sophisticated devices have replaced the old, crude devices. That, we can see, is happening right now. Made a very strong argument that the framers of the 14th and 15th amendments intended congress, not the courts, to be the primary defenders of Voting Rights. Lets take the First Amendment it says congress says,pass no law, so it ongress, keep your hands off. The 13th, 14th, 15th, Congress Shall enforce. It is affirmative, instead of being a negative check on what the legislature can do it is affirmatively given the legislature the authority to implement those amendments. You were also critical of the the opinionsion called northwest versus austin, which had avoided a constitutional decision on the Voting Rights act. That was an example of chief Justice Roberts avoiding the constitutional conflict by ruling narrowly, that are you sorry in retrospect that you joined . I think the result was right. This was a Water District that had never discriminated, but was in the state that had. ,he court read the act to say districts, municipalities, counties could bail out. You could be part of the state where there was discrimination going on, but in your area, there was no discrimination. I think the northwest versus , establishing that the bailout was available to smaller political units, was a good thing. The chief wrote the opinion. He put in language that came back to haunt some of us. Adam left tack, the new york wrote, thisntator rule will make a small, incremental state and will get you guys to agree to it and bring it back to haunt you in a future case where he rules on the constitutional question. Is that a fair characterization . Can you give another example . [laughter] than the Voting Rights act . I guess yes. Campaignfinance where first and wisconsin right to life case, mccainfeingold was not overruled but roberts wasnt there when , when Campaign Finance, mccainfeingold, was upheld. There was one decision where he and Justice Alito declined to pull the trigger. That was when Justice Scalia accused chief Justice Roberts of faux judicial restraint, which are fighting words on the Supreme Court. Campaignfinance was another. Affirmative action, which i want to ask you about, why you decided to dissent alone in the affirmativeaction case, but the thought was, here, once again, the majority was avoiding ruling squarely on a constitutional question, what the fear was the standard was being raised in a lead to theht overruling of the greater case and the end of affirmative action. Tell us why you decided to dissent alone in the fisher case. I thought the court was that wasposition astonishing, if you go back to the origin of the suspect classification doctrine. Of a footnote in a decision by then chief justice stone. Justice explaining that, for the most part, we ,rust the legislative process and the court is deferential, of the laws that congress passes. We guard these laws. We presume that what the legislature has done is constitutional. There are two categories of suggested, where that is not the right approach. Fundamental liberties, when the guarantees of the bill of rights, are at stake First Amendment rights are at stake. The court is the guardian of the bill of rights, and it should see to it that congress remembers. Pass no lawto abridging the freedom of speech or of the press. The other category, cases where the majority was disadvantaging the minority. Then you really could not trust the political process. Beinginority that was oppressed did not have the political clout. Majority not trust the to deal fairly. What was suspect was the majority disadvantaging the minority. , raceime, it has become is the suspect criterion. It is not at all what the original idea was. It state, in the case was texas university, the State University wants to have an affirmative action plan of the , who is thee kind court to say that that is unconstitutional . On my part again, it it seemed deferential to another decision it seemed deferential to another decisionmaker. You sound once again like you are out, you are being a better originalist and Justice Scalia. We have two cases were you are saying and, in fact, constitutional history is on your side, and you are a champion of judicial restraint and respecting the original understanding. The footnote was an insight that the court had. People think that suspect classification, some people it ist it started back there in the days when the court stopped putting down social and economic legislation and recognized that, for the most part, the legislature should decide what was good social and economic policy. Case with typical economic regulation. The court said, what congress did was ok. But stone said, maybe sometimes we have to be more suspicious about what congress is doing. That is what the court said during the new deal era, but you ,uggested in your final blockbuster dissent, the health care dissent on the Commerce Clause point, that perhaps some members of the court were trying ofreza right the battles economic judicial activism, and you said the attempt to strike down the individual mandate of the Affordable Care act under the Commerce Clause had resurrections of the lochner case, the case in the progressive era that struck down maximum our laws for bakers. Baers. Bakers. Seemed to me that the Affordable Health care act was just the completion of what was started in the 1930s with Social Security. Social security was upheld by the court. And many people thought after that the court was recognizing that economic and social policy was not its domain, so if the legislature wants to pass a minimum wage law, a maximum hours law, that was the legislatures prerogative. Most countries in the world, most industrialized countries, have universal health care. , longave Social Security before we did. I saw the Health Care Act as that flaw that the government is putting that law that the government is putting, people will have Social Security coverage when they are dies,y or when a partner and health care was part of that same understanding, that government does have an peoplesn to see that basic needs are met. Understand the resistance. The Social Security act, the name of the act is the federal it was sold to the public as an earned right. Work, pay an insurance premium, but you are not paying an insurance premium. You are paying a tax. That is with Social Security is. It is a tax that we pay so that people who are no longer able to work will be taken care of. The suspicion of social and , respondingislation to the needs of the wellbeing of the public anyway, i thought once the Social Security act, once that was accepted, there would be no question anymore about the Commerce Clause extending to health care. Yet the majority on that point introduced the distinction between Economic Activity and economic inactivity, and said congress can regulate this kind of connectivity it will therrect what you called broccoli horrible, why you are unconvinced that american citizens may be forced to buy broccoli if the individual mandate were upheld. [laughter] there was something about frying the broccoli in your opinion as how, the account of Americans Health would have to be approved to accept the promise of the broccoli horrible. The premise of the broccoli horrible. The truth about health care, it was portrayed as taking the young and the healthy and making them pay for the elderly and the infirm. Personyou think of a over the span of time today, you are young and healthy. In the nottoodistant future, you will be middle aged, and then you will be old, and then therell be young people who are paying for you. If you look at it as a whole lifespan, yes, you are paying young, andn you are the state is not providing services that you do not need, but over the long run, it evens out. Of course, the question of whether it was or wasnt the tax proved to be central. Itre was some comedy about during the debates. All the democrats stood up and said, it is not a tax. The republicans said, it is. After the opinion came out, it all switched. Notrepublicans said, it is a tax grid of the democrats said, it is a tax. Does reflect the debate at the time of Social Security. Social security was a tax. It was not an insurance premium. It was sold as not a tax. Even though the president try to sell the health care by calling tax, it was a penalty. Should that matter, what the president called it . It proved not to. The president wanted to get the Health Care Act through congress. Views, novery strong more taxes. We will not enact any more taxes. Call it a penalty. What did you think of the chief justices decision to uphold it as a tax . Thought it was interesting that, although he saw the Commerce Clause is limited, he saw the tax clause as expensive. Congress can tax as it will. It is not hemmed in. How could anyone think that Health Insurance doesnt involve commerce . Think of the criticism today of the Health Care Act. It is said, in some quarters, that this would be the ruination of Small Business. Well, Small Business is commerce, right . It is very difficult to that cut back on the reach of the Commerce Clause, and i think it will not have staying power. What do you mean . It will be overturned . Yes. We will get back to where we 1930sver since the late when economic and social legislation recognizes the congress. Ain of the to youras you may be particular state, there are so many things in this highly industrialized world that states cannot do, that have to have a national solution. Nationaloint about the solution was another example of you being a good originalist. Use of the framers of the constitution were concerned about the collective action problems in the article of the federation, and wanted to empower congress to act when states were unable to coordinate their actions together. You do believe the commerce reading will be overturned eventually. Are you concerned in the short term it might lead to invalidation of other economic legislation, environmental laws, health and safety laws . Im hopeful it will not have that ramification. All precedents, except this, is the other way. Now this was themost remarkable term Marriage Equality cases, the defense of marriage act case, and the perry case. In the doma case, you found there was standing to hear the case, and in the perry case, there was not standing. What was the difference . There was standing in both cases originally. Caseefense of marriage act , i think you know the background of the case that the court decided these were two in ae who live together partnership, and one of them was dieting dying and wanted to ofe the official blessings government on this union. They married in canada. Then came back to new york, which recognizes gay marriage and recognized the canadian marriage. Then the one partner died, and like aer gets something 360,000 estate tax bill from the government. She would have no bill at all if her marriage was recognized. She would get the marital deduction. That was the doma case. Originally, the government was defending the law, as it ordinarily does, but then it decided, after the case was heard in the court of first instance, that the plaintiff was right and the law was indeed unconstitutional. Think that would cepter the case moot, ex that although the government switched sides in its view of what the constitution required, it did not give the surviving spouse her refund. [laughter] as long as the government was holding the money, there was a continuing case of controversy. That is what the court it was on that basis that the court said, yes, we can hear the case a livealive cant case of controversy. If you are concerned about, will the court be given the best arguments on both sides, well, i think we had over 100 friend of the court briefs in the doma case. Informed. Ery well [laughter] you had the adversary presentations, and you had a controversy. Was in the courtroom before the doma case print i remember the remarkable moment when Justice Kagan read from the congressional report. One of the sponsor stood up and said, the purpose of the law is to express moral disapproval for gays and lesbians. There was a gasp in the courtroom. Was the case over from that moment . The court has set moral disapproval is not legitimate basis for laws even under lacks scrutiny. Lax some people say that we should look at the text of the laws that congress passes, and we should not pay any attention to what they say in Committee Reports or what they say on the floor. That kind of statement was thoughtless. This was an expression of moral disapproval. That would have no influence on someone who doesnt look at legislative history. Not likeeople who do legislative history, including Justice Scalia, of course, and you had called Justice Scalia to task for having objected to judicial activism in the defense of marriage act case, but not the Voting Rights act case. Yes, even without the legislative history, there were reams of legislative history showing the continuing need for the Voting Rights act. Answer to that is the my question about, what is the difference between these cases . The defense of marriage act case is one case where you voted to invalidate an act of congress, which you earlier defined as judicial activism. Why was it right to strike down the defense of marriage act and not the Voting Rights act . Because the defense of marriage act was violating the equality and liberty guarantees. That falls in the first category. The court has to be careful to notthat congress is stepping on our most fundamental human values. Doma wasnt the first time the court encounter this question. It wasnt so long ago that many states made consensual sodomy a crime. The court, at first, said, thats ok. It is ok to express moral is approval to that kind of activity. Then the court turned around in the lawrence case and said, the state has no business intruding on the lives of people who were did notmething that harm anyone. That was lawrence. Then there was the colorado ordinance case after that. Thecourt had already themes that were expressed in doma had already been stated. There was also, of course, the village the Virginia Military institute case, that said preserving tradition for its own stake its own sake is not a legitimate reason. It made the case perhaps easier for the challengers. Argued, i think persuasively argued, that the court overreached in roe v wade, that it read it too broadly of the privacy guarantees, and had it merely struck down the extreme texas law and not settled abortion for the whole nation, it might have avoided the backlash that ended up coming. What is the difference between Marriage Equality and abortion . Why was the court not jumping ahead of Public Opinion in this case in a way that you think it did do in roe v wade . The court is a reactive institution. You react to the controversies that are brought to the court. In doma, it was a couple hadming that their marriage the same right to be recognized by government as anyone elses. The only way that case could be , thesed was by saying people will be treated by the federal government did federal government roe v wade, i should be very clear, i think the result is absolutely right. Texas had the most extreme law in the nation. A woman could not get an abortion unless it was necessary to save her life. It did not matter that she would be left in firm infirm. Whether the conception was the result of rape or, none of that incest, noneape or of that mattered. The court could have decided the case before it, which is how the court usually operates. It should have said, that law, the texas law, is unconstitutional. It did not. There was no need to declare every law in the country addressing abortion, even the most liberal, unconstitutional. Courts not the way the usually operates. It doesnt take giant steps. Was this was an issue that was in flux all over the country, and the state legislatures, sometimes winning, sometimes they were losing, they were getting political experience, which was a good organizing tool. Then the Supreme Court said, you won. Onelso gives the opposition single target to hit at. If you have to disburse diffuse your energies, fighting this law in california, ohio, that is one thing, but if you have one announced by wade, the unelected, life tenured judges, that is a very good organizing tool on the other side. I know many people think that my judgment about that is wrong. I know there was a very strong right to Life Movement long before roe v wade came down. It continued after. But i think there is no response to the presence of the target that was simply not there before roe v wade. If the court had responded to the texas law and put down its been uts pen its pen. Re was a great dissension he said it was about a little boy who trotted out at a family party and asked, do you know how to spell banana . Knowid, yes, but i do not where it stops. [laughter] of my the other aspect criticism the image that you roe v. Wade ng opinion is that it is mostly adoptive rights case to describe what he thinks his patient needs and the images of the doctor and the little women. It is never the woman alone. It is the woman in consultation with her doctor. Not a privacy notion. Not doctors rights notions. But a womans right to control her own destiny and to be able to make choices without the big brother states telling her what she can and cannot do. [applause] do you think eventually will the court recognize abortion rights as a question involving gender discrimination . I think it is already in the case decision. Girls have grownup understanding that if they need it, it will be available to hem. There is a womans choice. And the abortion decision that rhetoric took a rather different form and you objected that the majority was being paternalistic in that women needed protection from their own choices. Yes. The woman had to be protected from her own misjudgment. That she would in time understand that she had made a dreadful mistake. But adults make mistakes. They are adults. They are entitled to make justments for themselves. You are not a fan of paternalistic decisions. No. Hen he describes this pedestal many of us have thought women turns eality too often out to be a cage. And when you litigated those cases you faced male judges who had those views and decided that in order to represent male plaintiffs because you thought they could better empathize with guys like them. I had more women plaintiffs than men plaintiffs. We were trying to educate the court that pigeonholing people because they are women to say a doctor, n be lawyer, indian chief. But girls can keep the house clean and take care of the children. There is something wrong with that view of the world. The mans world with little ace in it for a women woman. The notion was dont stereotype people because they are male or because they are female. Recognizing that the stereotype might well be true for the vast majority of people but once there were people that didnt fit the mold and they should be allowed to make choices, to ive their lives. That is why the first quote ens right case. This was a man whose wife was a teacher. She had a very healthy pregnancy. She was in the classroom. She went to the hospital to give birth. The doctor tells the father you he a healthy baby boy but vowed he would work part time until his son was in school full time. He applied for the Social Security benefits that he thought were available when a wage earner dies and leaves the child in the care of the surviving parent. He went to his Social Security office. They said we are so sorry those are the mothers benefits. You are not a mother. My wife pays the same Social Security taxes that other eople pay. The government did not extend to her family the same it would extend to a mans family. The man does not have a choice to be a care giving parent. He does not get any help when his life partner has died. E idea that men dont take care of children and they are the judgment was unanimous. Ever the only time to vote for the side that i was advocating. You know the court split three ays. Some thought it was discrimination against the father as parent. One thought it was discrimination against the aby. Said it is totally arbitrary that the child should have the care of the sole surviving parent if the parent is female but not if the parent was male. These questions are central to gender equality and you have a picture in your chambers. I think your granddaughter is here tonight. The picture is claras father holding one of his children. Clara knows the picture well. It is paul when he 26smonthold. He is out of bed with his father. He is looking at him with such tremendous love. That is my idea that a child hould have two caring parents. We would be a much better world if every child had a father like that. I think you would agree. I can continue the conversation all night but i think that we should end. I have to say how galvanizing this voice is that you articulated is. Do you intend to continue to be the liberal leader of the court and write as forcefully in the future as you have been. Let me think about what is coming up the next term. We have Campaign Finance. In the second week we have another affirmative action case. We have recess appointments. Rutledge was the chief justice for four months and then congress confirmed his nomination. So we have recess appointments rom the beginning. The extent of the president in that area will be addressed by the court this year. You have an important religion case . There is an Important School prayer case. The court hasnt had a chance to opine on in recent years. So that will be interesting. Well, i think what i want to close by asking you is do you expect your decents to be majority opinions in the future or on the contrary do you think that affirmative action will fall, that Campaign Finance will be further restricted and that roe will be further restricted. Are these things to wonder about or do you think that in 510 years you will be in the ajority . Sometimes congress is very helpful. This is the difference between a case that is a constitutional terpretation where the court says this is what the constitution means. That is what it means until the Court Overrules the decision or there is a constitutional amendment. But when you are dealing with scientists like our discrimination law title 7. If the court gets it wrong, congress can fix it. Times my most satisfying ledbetter was the said en my decent essentially my colleagues really understood what you meant. So make it even clearer. I think most of you know what the case was about a woman that was an area manager in a Goodyear Tire plant. It was a job that had been held dominantly by men. After she worked there for well over a decade someone put a slip of paper in her mailbox and it just had numbers on it. It was the salary and the pay of all of the men doing the same job. The most junior man was making substantially more than lily. So she brought the suit saying it looks like discrimination to me. The jury agree. She got a substantial verdict. Came to our court and said she was too late. It says you have to complain within 180 days of the drim torre event. This pay discrimination started in the 1970s. Well, think of the woman in her situation. First, the employer does not give out pay information, so how would she know. Second, if she suspected that she was not treated as well as her male counterparts she would also be concerned. If i complained and if i bring a suit the defense will probably be. It has nothing to do with her being a woman. She just does not do the job as well. Then if she goes on and is there for 10 years getting good performance ratings, that defense is no longer available. She has a winnable case at that point. She showed pay disparity. She can show that she did the job as well or better than the men. But the court says now you have winnable case it is too late. So i described what every woman of lilys generation knew that if you are the first woman in a field that has been occupied by menu do not want to be known as a complainer. You dont want to rock the boat. You dont want to be seen as a trouble maker. But they have a point when the discrimination is staring at you in the face and you have to make a stand. Nd that is what lily did but the defense was the total simplicity said every paycheck that this woman received is renewing the discrimination. She can sue within 180 days of her latest paycheck and she would be on time. That is what Congress Said that. Is what we missed. As i said the constitution is Something Else. He court has made mistakes and has corrected them. I hear you talk about these cases. You know the women and the men and their stories. You are really caring about the parties and noticing what is going on. Yes. One of the things about the gender discrimination cases in the 1970s is that none of these were test cases in the sense that some organization that we want to bring this issue to the court and lets see if we can find a case. Like sally ople reed. Sally reeds case was the first one. It involved the administrator of an estate. The law read as persons equally entitled, males must be preferred to females. Sally reeds case was that she had a teenage son. She and her husband were divorced. When the child was young the legal term is 10 years. Sally was given custody. The boy becomes a teenager. The father said now he needs to be prepared for a mans world. O i would like to be the custodian. The family court said yes. She thought the father would be a very Bad Influence on this boy. And then she said he was right. The boy was totally depressed. He took out one of his fathers many rifles and committed suicide. Sally want to be administrator of his estate. There was no advantage to her in this it was for sentimental reasons. Father applied two weeks later and the judge said im sorry sally. The law said men must be preferred to women. Sally reed thought than njustice had been done to her. This is a woman that was an every day woman. She made her living by taking in her elderly people home but she thought an injustice had been done. She thought the laws of the United States would protect her from this injustice. She went through three levels of idaho court on her own dime. So, that was the turning point case in the Supreme Court. Nothing that the National Organization for women or aclu created. It was women waking up to the inwallity to which they had exposed for which there was no rhyme or reason. That suggests the courts cannot do it alone. Absolutely. E of the features of the rebrief in 1971, we put on the cover page as council two womens names, paul een murray and dorothy kenyon. These were women a generation older than i was who were saying exactly the same things that we were saying in the 1940s and 1950s but society was not ready to listen. The solution is to put women on juries in every state. Women were either not called at all for jury duty or given an excuse simply because the scientist said please excuse from jury duty any woman. That was her mission. He had the perfect case. Was a woman whose husband abusive. He was a that landerer and the in something. Ed she felt a little like billy bud. He has a stutter so he cant defend himself. He was so outraged by this man she saw a baseball bat in the corner of the room and took it with all of her might. Hit him on the fell. She is being tried for murder florida. Ro county, they dont put women on the jury room. They can come to the Clerks Office and volunteer. If i have idea was women on this jury, maybe they will acquit me or maybe they will better understand my state of mind and convict me of the lesser crime of manslaughter instead of murder. She was convicted by an all male jury of murder. And her case came to the Supreme Court in 1961. We are now in the year of the liberal court. They didnt get it. The courts response was we dont understand this complaint. Women have the best of all possible worlds. They can serve if they want to. Dont have to serve if they dont want to. What about me and my rights to peers. Jury of my that case was an easy win in so 1970s, before the not liberal court. Why . Society had changed. Women had woken up. Because there was a worldwide. Ovement and the u. N. It was that societal change the court was reflecting in the gender discrimination cases of. E 1970s i do need to close with this question. So, i have the great privilege of leading this magnificent institution, the only one mandated by congress to discriminate information on a nonpartisan basis. Is that a realistic quote. Bringing together the best liberal scholars and conservative ones . S it an unrealistic ideal or one that should be strifed for . That this fundamental instrument of our government is something that children should now about. I went to china some years ago. There was a story in the paper about justice carries onstitution in her pocket. The chinese reporter, very impressed with that. Because in many places you would have a bill of rights, this is equivalent to ours. Ybe much more in its coverage. But it is aspirational. The constitution of the United States is our highest law and it trumps any other laws. The constitution that has that osition that is not just aspirational. That has stayed with us. The old joke about somebody going to a french bookstore and ising for a copy of the french constitution and the book eller says we do not deal in periodical literature. Imagine this constitution in 1787. T is still governing us. I have been here a few times. Even my granddaughter is able to do these interactive things than i am. Ut there is this place that is spreading knowledge about the most remarkable instrument of government that we have. It is a treasure. You inspire me to do my job. I think you inspire the audience as well. Ladies and gentlemen, please thanking her. [applause] [applause] [applause] thank you. Tonight a discussion about the role of first lady and how the media covered first ladies throughout the years. Speakers include Richard Norton smith and the washington posts charissa thompson. Tonight 7 00 p. M. Eastern on cspan. Science does not actually tell us what to do. It tells us what we think will happen and then we have to make choices about that and one of the implications of the simons line of argument is that the earth is always changing, we, the society, can change and adapt in many ways. We dont know that is with the . . . . . . . . . . . Climate problem. . . . . . . . . Even if you take that idea that society can adapt leaves us with the idea of if you can adapt is this the world you want to live in with the heat and the drought and the see level rise. So many things that we care about are endangered by the changes and we have a choice about it. Paul sabin on the bet book tvs book club is back this month with with this town. Read the book and see what other viewers are saying on our Facebook Page and on twitter. Next the u. S. s ambassador to the u. N. , Samantha Power outlines the obama position on military strikes in syria. She spoke yesterday in washington, d. C. Her remarks are 20 minutes. My topic today is syria. Syria is important because it lies at the heart of a region that is critical to u. S. Security. A region home to friends and partners and one of our closest allies. It is important because the Syrian Regime possesses chemical weapons they recently used on a large scale and that we cannot allow to fall into terrorists hands. It is important because the Syrian Regime is collaborating with iran and works with thousands of fighters from hezbollah. Syria is important because their people in seeking freedom and dignity have suffered unimaginable horror these last two and a half years. But i also recognize how ambivalent americans are about the situation there. On the one hand, we americans share a desire after two wars among which have taken 6700 american lives and cost over 1 trillion to invest taxpayer dollars in american schools and infrastructure. Yet on the other hand, americans have heard the president s commitment that this will not be iraq, this will not be afghanistan, this will not be libya. Any use of force will be limited and tailored narrowly to the chemical weapons threat. On the one hand we share and up horns for the brutal murderous tactics of assad, yet on the other hand we are worried about the violent extremists who while opposed to assad have themselves carried out atrocities. On the one hand we share the deep conviction that chemical weapons are barbaric, that we should never again see children killed in their beds, lost to a world that they never had a chance to try to change. Yet on the other hand some are wondering why, given the flagrant violation of an international norm, it is incumbent on the United States to lead because we cannot and should not be the worlds policemen. Notwithstanding these complexities, notwithstanding these concerns that we all share, im here to explain why the cost of not taking limited military action are far greater than the risks of Going Forward in the manner that president obama has outlined. Every decision to use military force is it an excruciatingly difficult one. It is especially difficult when one sees the syria crisis through the prism of the past decade. Let me take a minute to discuss the uniquely monstrous crime that has brought us to this crossroads. What comes to mind for me is one father saying goodbye to his young daughters. His girls had not yet been shrouded. They were still dressed in the pink shorts and leggings of little girls. The father lifted their lifeless bodies, cradled them and cried out, wake up. What would i do without you . How do i stand his pain . As a parent i cannot begin to answer his questions. I cannot begin to imagine what it would be like to feel such searing agony. In arguing for it limited military action in the wake of this atrocity, we are not arguing that syrian lives are worth protecting only when they are threatened with poison gas. Rather, we are reaffirming what the world has already made plain that there is Something Different about Chemical Warfare that raises the stakes for the United States and raises the stakes for the world. There are many reasons that governments representing 90 of population,e world including all 15 members of the un Security Council, agreed to ban chemical weapons. They kill people in the most gruesome way. They kill indiscriminately. They are incapable of distinguishing between a child and a rebel. And they have the potential to kill massively. We believe that this one attack in damascus claimed more than 1400 lives, far more than even the worst attacks by conventional means in syria. And we assess that also aside assad used more weapons on august 21 that he had used before, he has barely put a dent in his stock pile. And the community has not yet put a dent in his willingness to use those. President obama, secretary kerry and many members of congress have spelled out the consequences of failing to meet this threat. If there are more Chemical Attacks, we will see an inevitable spike in the flow of refugees on top of the already 2 million in the region possibly pushing lebanon, jordan, turkey, or iraq past their breaking points. The fifthlargest city in jordan is already a refugee camp. Half of syrias refugees are children and we know what can happen to children who grow to adulthood in refugee camps. They become fertile recruiting grounds for violent extremists. Beyond syria, if the violation of a universal agreement to ban chemical weapons that is not met with a meaningful response, others will seek to use them to protect or extend their powers, increasing risks to american troops in the future. We cannot afford to signal to north korea and iran that the International Community is unwilling to act on proliferation or willing to tolerate the use of weapons of mass destruction. If there are no consequences now for breaking the prohibition on chemical weapons, it will be harder to muster an International Consensus to ensure that has a lot of and other terrorist groups are prevented from using these weapons themselves. People will draw lessons if the world proves unwilling to enforcing norms against chemical weapons use that we have worked so diligently to construct. And israels security is threatened by insecurity in the region and their security is enhanced when those who would do them harm know that the United States stands behind its word. That is why we have seen come out inporters support of the president awesome action. These are just some of the risks of inaction. Many americans and some members of congress have legitimately focused as well on the risks of action. They have posed a series of important questions and i would like to use the remainder of my remarks to speak about some of them. Given our collective war weariness, some have asked why we cannot use nonmilitary means to achieve the same and. My answer to this question is that we have exhausted the alternatives. For more than a year we have pursued countless methods to try to persuade aside from using dissuade assad from using chemical weapons. We have engaged the syrians directly and others have sent them similar messages. But when scuds and similar weapons did not quell the syrian rebellion, assad started using chemical weapons multiple times as the United States concluded in june. Faced with is growing evidence of several smallscale subsequent attacks, we redoubled our efforts. We backed the u. N. Diplomatic process and try to get the parties back to the negotiating table, recognizing that a political solution is the best way to reduce all forms of threat. We assembled and went public with compelling and frightening evidence of the regimes use of chemical weapons. We worked for more than six months to get inspectors access to the country on the logic that perhaps the presence of an Investigative Team in the country might deter future attacks. Or, if not, at a minimum we thought perhaps a shared Evidentiary Base could convince russia or iran, itself a victim of saddam husseins Chemical Attacks in 1987 and 1988, two cast loose a regime that was gassing its own people. We accelerated our assistance to the syrian opposition, we supported the u. N. Inquiry. Russia, often backed by china, has blocked every relevant action in the Security Council even mild condemnations of the use of chemical weapons that did not ascribe claim to any particular party. In assads calculus, he must have weighed the military benefits of using this hideous weapon against the recognition that he could get away with it because russia would have syrias back. Staged the1, he largest chemical attack in a quarter century while you and inspectors were sitting on the inspectorsof un were sitting on the other side of town. The president concluded that a limited military strike is the only way to prevent aside from employing chemical weapons as if they are a conventional weapon of war. I am here today because i believe, and president obama believes that those of us who are arguing for the limited use of force must justify our position, accepting responsibility for the risk and the potential consequences of action. When one considers using nonmilitary measures we must similarly address the risks inherent in those approaches. At this stage, the diplomatic row says has stalled because one side has just been gassed on a massive scale and the other side so far feels it has gotten away with it. What would words in the form of diplomatic condemnation achieve . What could the International Criminal court really do even if russia or china were to allow a referral . Would a drawnout Legal Process really affect the immediate calculus of assad and those who ordered chemical weapons attacks . We could try again to pursue economic sanctions, but even if russia budged, would more asset freezes, travel bans and banking restrictions convince assad not to use chemical weapons again when he has a pipeline to the resources of hezbollah and iran . Does anybody really believe that employing the same approach as we have tried for the last year will suddenly be effective . Of course, this isnt the only legitimate question being raised. People are asking, shouldnt the United States work through the Security Council on an issue that soap clearly implicates International Peace and security . The answer is of course, yes. We could if we would. If we could, we would, if we could, but we cant. Every day for the two and one half years for of the serial , we have conflict shown how seriously we take the u. N. Security council and our obligations to enforce International Peace and security. Since 2011, russia and china have vetoed three separate Security Council resolutions and deming the Syrian Regimes violence or promoting a political solution to the conflict. This year alone, russia has blocked at least three statements expressing humanitarian concern and calling for humanitarian access to besieged cities in syria. In the past two months russia has blocked two resolutions condemning the generic use of chemical weapons and to press statements expressing concern about the use. We believe that more than 1400 people were killed in damascus on august 21 and the Security Council could not even agree to put out a press statement expressing its disapproval. The International System that was founded in 1945, a system we designed specifically to respond to the kinds of horrors we saw play out in world war ii, has not lived up to its promise or its responsibilities in the case of syria. It is naive to think that russia is on the verge of changing its position and allowing the un Security Council to assume its rightful role as the enforcer of International Peace and security. In short, the Security Council the world needs to deal with this urgent crisis is not the Security Council we have. Many americans recognize that while we were right to seek to work to the Security Council, it is clear that syria is one of those occasions like kosovo where the council is so paralyzed that countries have to act outside it if they are to prevent the flouting of International Laws and norms. The same people reasonably ask beyond the Security Council, what support does the United States have in Holding Assad accountable . While the United States possesses unique capabilities to carry out a swift, limited and proportionate strike so as to prevent and deter future use of chemical weapons, countries around the world have joined us in supporting decisive action. The arab league has urged International Action against syria in response to what it called the ugly crime of using chemical weapons. The nato secretarygeneral has said that the Syrian Regime is responsible and that we need a Firm International response to avoid a chemical weapons attack in the future. The organization of islamic cooperation blames the Syrian Government for the Chemical Attacks and calls for decisive action. 11 countries at the g 20 summit today called for a strong International Response and noted that they are supporting efforts by the United States and other countries to reinforce the prohibition on the use of chemical weapons. As i have found over the last week at the u. N. , the more that countries around the world are confronted with the hard facts of what occurred on august 21, the more they recognize that the steep price of impunity for assad could extend well beyond syria. The president s decision to seek congressional support has also given the United States time to mobilize Additional International support and theres no question that authorization by our congress will help strengthen our case. One of the most Common Concerns that we have heard concerns less on the how and when of intervention but on the what. Some americans are asking, how can we be sure that the United States will avoid a slippery slope that would lead to full scale war with syria . On the other hand, others are asking if the u. S. Action is limited, how will that have the desired effect on assad . These are good and important questions. The United States cannot police every crisis anymore than we can shelter every refugee. The president has made it clear he is responding militarily to a mass casualty chemical weapons incident. Any military action will be a meaningful, timelimited response to deter the regime from using chemical weapons again and to degrade its ability to do so. From the start of the syrian conflict, the president has demonstrated that he will not put american boots on the ground to fight another war in the middle east. The draft resolution before Congress Makes this clear. President obama is seeking your support to employ limited military means to achieve very specific ends, to degrade assads capacity to use these weapons again and to deter others in the world who might follow suit. United states has a discipline as a country to maintain these limits. Limited military action will not be designed to solve the entire syria problem. Not even the most ardent proponents of military intervention believe that peace can be achieved through military means. But this action should have the effect of reinforcing our larger strategy for addressing the crisis in syria. By degrading assads capacity to deliver chemical weapons, we will also degrade his ability to strike at civilian populations by conventional means. In addition, this operation, combined with ongoing efforts to upgrade the military capabilities of the moderate opposition, should reduce the regimes faith that they can kill their way to victory. In this instance the use of limited military force can strengthen our diplomacy and efforts by the u. N. And others tune it to achieve negotiation. Let me add a few thoughts and closing. I know i have not addressed every doubt that exists in this room, in this town, in this country, or in the broader International Community. This is the right debate for us to have. We should be asking the hard questions and making deliberate choices before embarking upon action. There is no riskfree door number two that we can choose in this case. Public skepticism of foreign intervention is an extremely healthy phenomenon in our democracy. A check against the excessive use of military power. The American People elected leaders to exercise judgment. There have been times in our history when president s have taken hard decision to use force that were not initially popular because they believed our interests demanded it. From 1992, when the bosnian genocide started to 1995 when president clinton launched the airstrikes that stopped a war, Public Opinion consistently opposed military action there. Even after we succeeded in ending the war and negotiating a peace settlement, the house of representatives reflecting Public Opinion voted against deploying american troops to the nato peacekeeping mission. There is no question that this deployment of American Power saved lives and return stability to a critical region of the world and a critical region for the United States. We all have a choice to make. Whether we are republicans or democrats, whether we have supported past military interventions or oppose them, whether we have argued for or against such action in syria prior to this point, we should agree that there are lines in this world that cannot be crossed. There are limits on murderous behavior, especially with weapons of mass destruction that must be enforced. If we cannot summon the courage to act when the evidence is clear and when the action being contemplated is limited, then our ability to lead in the world is compromised. The alternative is to give a green light to outrages that will threaten our security and haunt our conscience, outrages that will eventually compel us to use force any way down the line at far greater risk and cost to our own citizens. If the last century teaches us anything, it is this. Thank you so much. [applause] more about aar potential usled military strike on syria from president obama on tuesday night. He will address the nation. We have live coverage on the c span network. Reports thatlitico a day before the address, the president will appear in a series of interviews. He will discuss syria with diane sawyer of abc, scott kelly of cbs and Chris Wallace of fox news. For more on the president s address tuesday, we talked to a reporter with politico. Housening us is white Deputy Editor for politico rebecca sinderbrand. What is the white house plan over the weekend . The white house continues its floodthezone strategy. We know Vice President biden will meet with republican senators tonight. We know the Administration Officials are planning to include susan rice, john kerry, chuck hagel, all planning a briefing with the full house in a closed session monday night. You know the white house chief of staff will be meeting with House Democrats on tuesday, and john kerry will appear before the armed House Services committee. All this before the president addresses the nation on tuesday night. How have officials been reacting to the strong pushback on democratic and republican sides on the resolution on syria . You have seen the interesting message from the white house. We have had two variations. What you are hearing now, because of this overwhelming pushback from congress, is the white house getting a lot of questions what happens if Congress Votes no . A mixed message from the administration. Kerry and the president say he retains the authority to take action with or without congressional authorization. Hearing from the deputy National Security advisor says it is not the president s desire or intention, and he does not want to take action without congressional approval. They do not want to downplay the need for congressional approval. At the moment they are asking for it. It is important from a symbolic perspective. You say the administration will brief the full house on syria on monday. Why all house members, and who specifically will they hear from . They will hear from the susan rice, the National Security advisor, james clapper, director of national intelligence, john kerry, and they will hear from the chairman of the joint chiefs and chuck hagel. The senate will vote on that resolution on wednesday, and if it passes, the house is supposed to be putting this up for a vote. It looks like an extreme uphill battle. This will be the third chance first chance for the entire that alleged since chemical weapons attack last month. The house will be back in session, the first time they will have all the members together hearing from the administration, getting a full briefing, a classified briefing. The white house announces the president will speak to the nation on tuesday. Boehner reacting to the syrian speech news we only hope this is not coming too late to make a difference. Who is the president aiming for in the speech . Who is the target . Is it the nation as a whole, or a specific targeted artist of audience of lawmakers . At the moment right now, the president needs to address the nation as a whole is the message that is becoming from people who support his policy and people who criticize his policy. Particularly, from boehner, someone who is favoring the policies, saying he will not work to make sure his colleagues vote, but making the case that the president has not made the case in a sustained and public way. Looking at the direction of the polls, and right now over the past few months the public support for intervention has dropped and continues to drop even following reports of this alleged chemical weapons attack. The sense that the president has not done everything he can do, or everything he needs to do, to make this case, unless the dynamic shifts in a fundamental way, he is looking at a no vote in the house. What is politicos quickstep rick snapshot with count count . Napshot whip at this point it is shifting almost by the moment. The most recent estimate that our reporters have determined that we have gotten from lawmakers and aides who have been tracking this is that at the most there would be maybe one or two dozen republicans that would back the resolution at this point. They would be looking for a very strong defeat in the house, and is on pace, at least at this point, and the senate is less certain, but it is on pace not to make that either. The speech by the president comes at a very critical moment come a it comes on the eve not only of the senate vote, but also on the eve of the september 11 as well, so all the nation will be watching, so both the people who support and oppose this policy are going to be watching to see what the president has to say on tuesday night. Rebecca sinderbrand, thanks for the update. Thanks so much. A look now at some house members leaning in their vote regarding the with her action on syria. Right now, 31 members are in favor or close to being in favor of a military strike. 138 remain opposed. 92 are still undecided. That breakdown comes to us courtesy of the hill newspaper. They will continue to update the numbers on a daily basis. 217 votes are needed to pass a resolution. There is currently no debate scheduled on the haussler. When that happens, you can watch it here house floor. When that happens, you can watch it here live on cspan. Coming up, the communicators with the fccs you communicate commissioner. Ahead of season two of first ladies, a discussion about Media Coverage and how it evolved over the years. With00 p. M. , a discussion the author of a book about the search for bin laden. Span, created by americas Cable Companies in 1979, brought to you as a Public Service by your television provider. We are pleased to welcome for the first time to the communicators table, new fcc commissioner jessica rosenworcel. Welcome to the communicators. If you would, start by talking about some of the issues that you foresee the fcc dealing with this coming fall. Ok. First of all, thank you for having me here on this show. For theu also to cspan great Public Service work that you do and have done for decades. We have a lot of issues. Because indiverse many ways, the fcc oversees the digital economy, the information economy which by some measures accounts for as much as 1 6 of the economy itself. One of those things is wireless communications. You can look around at the proliferation of phones and it is probably no surprise that it is an area of real interest. You also have to consider some of the numbers. We now have more wireless phones in this country then we have people. One in three American Adults now has a tablet computer. All of those devices are using more of our airwaves than ever before. We are just Getting Started because worldwide, global data demand is going to grow up 13 times in the next few years. The fcc has a lot on its plate when it comes to our airwaves and how we use them. We have some traditional auctions on deck options on deck in the hands of carriers who can make it available. We also have some new and innovative options called incentive options. To put more airwaves in innovative hands. On top of that, we have Traditional Networks in the anynd and the broadband fuss is just as important as the airwaves around us. Whiche the ip transition is really a conversation about the next generation of network infrastructure. We have to make some decisions at the agency and perhaps run some trials so that we can identify the best policy to incentivize private investment and make sure that consumers get all the benefit from the new networks as they are deployed. On top of that, we are doing some really innovative and with broadband in schools. I am really excited about that. Thee rate program is from telik and indications act of 1996 which was quite a while Telecommunications Act of 1996 which was quite a while ago. In 1998, i was calling the internet the information superhighway. Creditld give congress for the purpose of the rate program which is the nations Largest Technology education program. It is to make sure we wire all the schools in the country to the internet. By some measures, we have done a great job. When the program was put in place, we had 14 of Public Schools connected to the internet. Now that number is probably about 95 . It looks like we are doing a good job. I would say the issue now is not connection, it is capacity. We need to make sure that those connections have a high capacity for the broadband age. In my office, we spent some time looking at this program and trying to understand it better. We realized that with the connections we have today, about half of our schools are connected at three megabits or less. That is not a speed youre going to use for the most innovative teaching tools. It is not a speed that you can use to watch highdefinition streaming video. It is not a speed that we can use to educate the next generation of entrepreneurs. More than that, we should do something about this program because around the world, a lot is happening when it comes to technology. In south korea, 100 of their schools are wired for broadband and they are moving to digital textbooks by 2016. In places like ecuador, every primary student has a laptop. In thailand, they are moving towards a one tablet per student policy. We can let other nations lead the way o