Transcripts For CSPAN Supreme Court And Religion 20141228

It was finally ratified by the requisite number of states on may 7, 1992, 200plus years after it was originally sent out by congress. It has to do with congressional pay. It provides that if Congress Gives itself a pay raise, it will not take effect until another election. In any event, we know who was president of the United States on may 7, 1992, president george h. W. Bush. So that is a connection between him and the bill of rights. The second also concerns the date. But it is much more than a curiosity. President bush was in office on the 200th anniversary of the ratification of the bill of rights, december 12, 1991. And he took that occasion to point out something that is very important, namely the connection between our bill of rights and the rights of people everywhere. For a long time, what our constitution gave us, a declaration of rights that actually had teeth. That is what is unique about our bill of rights, it actually has teeth, it is actually put into operation, it is actually enforced. For a long time, that concept was an oddity. For more than 150 years, the idea that a legislative act is void if it infringes the right of the people found very few adherents anywhere else in the world. But world war ii, where president george h. W. Bush fought with great distinction as a pilot, changed that. The enormity of the evil that was perpetrated by the third reich, often under the veneer of legality, prompted people throughout the world to rethink the whole question of rights. And the american idea of an enforceable bill of rights began to catch on. All of the former axis powers after world war ii adopted new democratic constitutions that protect human rights and provide for judicial review of constitutionality of government acts. Then, after the collapse of the soviet union and the warsaw pact during president bushs term in then, after the collapse of the soviet union and the warsaw pact during president bushs term in office, the newly liberated nations of Eastern Europe followed suit. In his proclamation on the 200th anniversary of the bill of rights, on december 12, 1991 president bush noted that the principles enshrined in the bill of rights inspired the advance of freedom around the globe. When president bush issue that proclamation, a great event in the history of human rights was just three days away. And im sure that this event was on president bushs mind when he issue that proclamation. On december 15, the soviet union was officially dissolved. And president bush was able to say in his proclamation that today, we stand closer than ever to achieving universal respect for human rights. Well, 23 years later, universal respect for human rights may not seem quite so close as it was in 1991. But still, the promise of the bill of rights endures. And i hope that this display of the bill of rights will help, if only in a small way, to move us closer to that goal. When visitors look at this document, hope the experience will lead to a greater appreciation of our constitutional rights. And that it will inspire the public to work to preserve those rights. Constitutional rights the precious freedoms that are protected by the bill of rights are always fragile. They are always threatened. The judiciary and others in government have a role to play in protecting those rights, bbut as a great jurist, a new yorker, wrote liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. May this exhibit fan the flame of liberty in the hearts of all who see it in the upcoming years. Thank you very much. [applause] [captioning performed by the national captioning institute] [captions Copyright National cable satellite corp. 2014] justice, thank you for that inspiring speech which so thoughtfully explore the relation between the structural provisions of the constitution and the rights that were enumerated. I loved your metaphor. As an illustration of the justices point about how the constitutions of postworld war ii powers adopted u. S. Provisions, you know have the opportunity in previewing the constituting liberty exhibit to check out the rights interactive. Click on the american Fourth Amendment and see the general Douglas Macarthur cut and pasted into the japanese constitution and the language is almost identical. This has been a thrilling evening. It has been a literal instant station of the mission of the constitution center, to unite thoughtful people of all perspectives across the country, to visit, learn, debate, and participate in our shared enterprise of constitutional education and celebration of the documents that divide and unite us as americans, the constitution declaration, and bill of rights. Im going to welcome back the members of the philadelphia orchestra to play their beautiful music. These join us in previewing the new gallery and thank you for joining me please join us in previewing the new gallery and thank you for joining me. [applause] in a moment, a discussion on how religion figures into the deliberations of Supreme Court justices. Then an update on the latest breakthroughs in cancer research. Bobby scott talks about the need for more research is resources. And the conversation on whether justice would be served if the Death Penalty is abolished. Monday night on the communicators to get Amie Mitchell of the Pew Research Center on Political Polarization and where people get their news. They look at facebook in particular because they are still really the largest, the outlet that has the greatest percentage of the American Public using in terms of social sites. About half of our respondents said they got political news from facebook in the last week. That puts social media about on par with local television and some of the other really top outlets. A clearly does play a role in peoples information environment and how they are learning and who they are communicating with. But we found when we broke down the differences is that the consistent conservatives were much more likely to have circles of friends and see political posts that are more aligned with their own political thinking more so than those that are mixed and also more than consistent liberals. Consistent liberals are much more likely to actually defr iend someone because of their political views. Monday night at 8 00 eastern on the communicators on cspan2. Q a is 10 years old. To mark a decade of conversations, we are featuring one interview from each year of the series. Tomorrow, dan reed, director of terror in mumbai. More than 175 people were killed and 300 wounded. The movie tells a story using security cam video, intercepted telephone calls and interviews with the survivors. That is at 7 00 p. M. Eastern on cspan. Currently on the Supreme Court there are six justices who are catholics and three that are jewish. Up next, reporters who cover the court discussed the influence of faith and religion in the way the justices review and decide cases. The newseum held this event in washington, d. C. In late october. Lets see if this is going. It is going. Good. Good evening, everyone. Welcome to the night Conference Center at the newseum. We are very pleased to see everyone out tonight. Either you dont like football or you are very interested in this topic, one of the two. I am glad you are here. I only heard about this myself last minute area that is how far out of it i am, but there are probably some fans you want to have this discussion, so thank you for being here. If you are not on our invite list and happened in here some other way and did not get an invitation to our programs, let us know, because we would be happy to put you on that list for future programs. I am Charles Haynes, and i direct part of this program. We are so happy to be partnering once again with moment magazine, which is a wonderful publication, as many of you know, part of great programs here, and we are, together sponsoring a discussion that is about a contentious, murky, but always fascinating topic, which is the u. S. Supreme court, and we have an outstanding panel. I would just note that on this panel, we have over 100 years of experience covering the u. S. Supreme court, and that is just lyle denniston. [laughter] not quite, but you are going to get there soon. We are very, very fortunate to have this outstanding panel. Im going to turn things over to amy schwartz, who is the opinion manager over at mlmoment magazine, and i will turn it over to her. Good evening, everyone. Welcome to tonights discussion about the Supreme Court decisions. My name is amy schwartz, and i am the opinion editor of moment magazine, and this is the premier magazine of to which culture and relisten. Religion. The editor and chief is here but toiling away on a deadline, so making an appearance, and our wonderful partners, Charles Haynes and the Freedom Center of the newseum institute. We are looking forward to a wonderful evening. Thank you also to the staff of both our magazine and the institute, who have done so much work to bring this evening together. Our topic tonight is one that as recently as a couple of decades ago would have been widely considered taboo. Our Supreme Court justices, are they influenced in their decisionmaking by the opinions they bring to the bench . Most casual observers and even most legal observers would argue back then that they should not be bringing religious conviction to the bench, if they had them but as a Supreme Court justice they would have said, and as john roberts contended at his confirmation hearing in 2005 far from applying his own believes, he simply calls them as he sees them. But much has changed since that earlier consensus and even since that confirmation hearing almost 10 years ago. The traditional makeup of the court has changed dramatically and we know more about the views then we knew before, because the times are more wired and interactive, or simply because the justices are more vocally devout. Does it matter . Do their religious beliefs have more of an impact than they once did, and if so, what impact . Where will we see the difference . In churchstate separation . Gay rights . Abortion . Or things we cannot even envision . We have organized a panel. Constitutional law, and in the middle we have Marshall Breger at the school of law at catholic university. He was a senior fellow at the heritage foundation, and during the george h. W. Bush administration, he was chief lawyer of the labor department. From 1985 to 1991, he was chairman of the administrative conference of the United States, and from 1987 until 1989, he served as an alternate delegate at the u. N. In geneva. He has also been a liaison to the Jewish Community under president reagan. Stephen wermiel practices constitutional law. He teaches constitutional law First Amendment and a course on the Supreme Court. He is also part of the American Bar Association on individual rights, and he writes a blog about explaining the Supreme Court to law students. He is a cowalker of the definitive graffiti of william j brennan, who i am sure we will discuss, definitive author on william j brennan. We have reporters who cover the court, as charles said, and bob barr and has been a Washington Post reporter ever since 1987 and has covered the Supreme Court since november 2006, including the nominations of Sonia Sotomayor or and elena kagan, and return to the court. Lyle denniston is the senior News Reporter covering the Supreme Court, which he has been doing from 1958, mostly with newspapers, including the star. For the fast past 10 years, he has been running for an online clearinghouse about the Supreme Court. He has received numerous awards, including for legal journalism and he has taught at colleges and universities. Tony mauro has covered the court for 34 years for usa today and more, and since 2004, the legal times, the livejournal, and the Supreme Court brief, a subscription newsletter. He is an author of a book published in 2005 by Congressional Quarterly press. He is a longtime member of the steering committee, and in 2010 was inducted into the freedom of information hall of fame. And other institutions. So we are very grateful to all of these very knowledgeable Supreme Court followers for giving us their expertise, and i am going to ask each one to begin by speaking briefly on the general question of whether the changing makeup of the Supreme Court has had an effect on its jurisprudence. For the first time ever, there are no protestants on the board. Three jews and six catholics, of varying political flavors. Does this matter, and if so, how does it matter . How is it illustrated . We would just go from this side to that side. We will start with bob lawrence. Barnes. Vocally devout justices set to hear religious objections to health care law. Well, thank you for having me. It is a pleasure to be here. The reason i wrote that story is because i was talking to a former Supreme Court clerk, now i prominent law professor who pays a lot of attention to these issues, and he told me that when he was clerking at the Supreme Court, if anyone had asked him if any of the justices were religious he would have said no, that none of them talk about it. He sought no real evidence of them being religious, and he thought that this court was very different. These justices have talked about their faith, much more, probably certainly Justice Scalia. He is the most outspoken about it. He said that intellectuals have to be what he calls fools for christ, and to be in to say that some things are aboutface, and when you think about the justices, they all have an interesting connection to religion, i think. Justices sotomayor and thomas talk about how Parochial Schools really were what lifted them out of poverty and in situations neighborhoods in which education was not terribly valued. Sometimes, justice kagan, who probably would she say she is not that religious nonetheless said she had religious instruction three times a week. She was the first girl to be bat mitzvahed at her synagogue. She said it was good, not great, being justice kagan, and all of the justices, i think, have this connection, and i do not know if any of us can say how that affects the way they do cases, but i do think it has a big impact on those going to them. I thought, for instance, that the Obama Administration and the recent hobby lobby case about whether private Business Owners had a right to say that their religious objections keep them from offering certain kinds of contraception was a very very sort of respectful of religion deliberate from the government. All of those briefs talked over and over again about how it was not at issue what these challengers to the law believed or how valued their believes should be, and so i think that the difference has come in the way people approach issues to the court, and maybe some of the cases that the court takes itself. We could talk about the town of greece case about prayers before a town council meeting. That is one that the court did not have to take but decided to take, and it really divided the court, so i think one thing to think about is how with the justices have said about religion affects the way people approach the court. I think i would have mentioned to some of the same things that bob just has about the justices, although i think there is one quote from the Justice Scalia article, that we must be fools for christ sake, and i wrote to him and said, are you sure there wasnt a, a comma in there, and he liked that. [laughter] they are more principled about their religious faith, in general. I think it could be partly because so many people whatever they say, anything, people are watching much more than they used to. It is not uncommon for justices to talk about their faith, but people werent listening maybe 20 years ago. Navy it is also the case maybe it is also the case, and this may be stereotyping, that they did not speak as outwardly about their faith as some catholics and some jews. What i would say is that i think it does have an effect on how they look at cases and look at life in the same way, coming from harvard or being born in the south has an impact on their perspectives. It is just one of many cultural elements in their backgrounds, and even Justice Scalia has said we come to the court. We are who we are. The come to the court with our upbringing and the elements that our parents brought to us in raising us, and we cannot avoid that. But he has said, and they all have said that they keep that separate from our professional lives, so i think it is just something that is of interest, and i think that they recognize also that this change is making up six catholics and three jews. Justice sotomayor or at law school was recalling that she was talking about the types of diversity that the Supreme Court ought to have. It ought to have more people from different areas, a civil rights attorney or two instead of a corporate lawyer, and then she said plus we all believe in god. And that was kind of striking to hear that, do think that there is nobody on the court who is an atheist. I think you could argue we could talk about this later, but it would be interesting to think about whether a devout atheist could ever be confirmed to the Supreme Court. I kind of doubt it. An atheist on the Supreme Court . I sure dont think so, and there are not many devout atheists in congress either, for that matter. I think when justice said he was agnostic, so that is part way there. I suspect others, as well, but i will wait until it is my turn. Go ahead. In some ways, i have to say i am kind of a dissenter, because i am not sure being a catholic or a jew or even a protestant that does not tell you much about how theyre going to make decisions probably because there are so many ways of being a catholic, so many ways of being a jew, so many ways of being a protestant. I do think that what you bring to the court, your experiences your background tells you something about how youre going to approach cases, and not to open up a controversy again, but i think Justice Sotomayor or, a latina, brings some sense to that. That is what she was bringing. Thurgood marshall brought in special experience to the court. Even if he was outvoted, it was something the justices were sensitive to. We should not over determine the notion of the effect of religion. It is one of many things that are part of the influence on justices. Having said that, i think the topic is very interesting, because it has to do with the selection process. There is a sensitivity. I think it was eisenhower who talked about the qualified catholic. It has to do with notions of representation. I mean, the notion that there be a woman on the court was important, and i guess protestants are upset that they do not have a protestant on the court, and it also raises a lot of interesting theoretical issues, because it goes directly to this question of can you bleach out, to be a professional, do you have to bleach out your personal distinctions, your personal characteristics, and i think that was a notion of what it was to be a professional in the 1940s and 1950s and before, so you had this view that youre supposed to remove your jewishness from being a lawyer. Remove your protestant this, and i think we have a different view of the world now, and that raises some interesting questions and solve some other ones, but i think we should be aware that we are living in a world where it is not just justices, but all politicians are talking about their faith. I mean, probably, it george h. W. Bush, one of my jobs was to sort of take him around the Jewish Community a bit. He could not stand wearing a yarmulke. It had nothing to do with any negativity. And i think one of those really goes to a point, i am just an umpire. There is a terrific quote. I did not memorize it, by a law professor. And he says much harm is done by the myth, but by merely putting on a black robe and taken the oath of office as a judge, a man ceases to be human and ceases of all predilections. I think that was in his Second Circuit opinion, but the point is as much as justices say that is what they are doing, we have to have a question mark around that. When was that . In the 1940s, when he was in the Second Circuit. You want to talk partly about how things have changed. I know youre an expert. Was ok. I apologize first for my voice. This is the voice i was born with, and that is why i am not a broadcaster. [laughter] when i was in high school, i did sing in the choir, but every now and again, mrs. Peterson would say, lets try it again without him. Thank you for having this event and charles for sponsoring it. This is a fascinating topic. I have recently been reading a book on the ratification process of the constitution, which is a fabulous work, and it is interesting how often in the ratifying conventions the questions of a religious test for Public Office came up as an issue, and as you know, the constitution itself insists that there not be a religious test for Holding Office in the national government. So to a degree for a traditionalist like me, or at least a traditional journalist this makes me a little uncomfortable, because i tend to think that religion is a matter of private choice and private exercise and that we should not, in fact, have our Public Officials in terms of how well they serve their faith. I must tell you that i am married to a baptist, who is a seminary graduate, who is about as rigid a separationist as you can find, and a lot of that has rubbed off on me, though i tend to be somewhat wary of this topic. However, there are a few areas where i do believe that the religious preferences of the justices or the religious identities, if you will, do have an impact, and i think the Steady Movement towards expanding the sphere of religion in the Public Square is inconsiderable part a product of the comfort with which certain fates, particularly the Roman Catholic faith, has him, if you will, coopting the government in order to advance the principles of that faith. And i think i think that is a very important influence in this court, sometimes precipitously moving religion more to the center of public affairs, and it is very different now. I do also think that the abortion question is now driven inconsiderable part by the Roman Catholic perspective on abortion , and, of course, when you talk about abortion, in this court, you have to talk about anthony kennedy, who probably holds a decisive vote on that subject. One cannot read his opinion in the gonzalez case, upholding the partial birth abortion act without seeing how he was, if you will, take it into camp by some pretty junky science about the way women react to questions about their Reproductive Health and how they suffer in terminally in a good deal of agony after they have undergone this particular procedure, so i think Justice Kennedy is acting out of his faith in that area. It is always difficult, to know where a kennedy is going to wind up, liberty, interest, because so much of his jurisprudence is driven by the whole constitution structure and history is devoted towards the service of liberty interests, but when it comes to womens liberty interests, i think Justice Kennedy is pretty close to tone deaf. Having said nothing controversial [laughter] but i apologize. I miss spoke. You are the author of a book about Justice Brennan. And i want to talk a little bit as lyle did. Justice brennan, i think, it is to say the most ardent separationist in the modern history of the court, and i think he was that precisely he was catholic. That is where his catholicism took him. He believed deeply in religion but he believed that it was private and personal and that having religion in the Public Square and in public life was divisive. For historys sake, Justice Brennan was on the court from 1956 until 1990. He participated in decisions prohibiting School Prayer and was vilified by the Catholic Church for doing so. He felt strongly enough about his views in those cases to write a separate 50page concurring opinion in the second School Prayer decision in 1963 a case called Abington School district versus shep, and i was looking over that again today, about whether or not we could ever have an atheist on the court. Justice brennan in his opinion in 1963 talks about the establishment clause embodied the framers conclusion that government and religion have discrete interests, which are mutually best served when each of voids too close proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil policy, but in a high degree, it is a devout believer who fears the secularization of the creed, which becomes too deeply involved with and dependent upon the government. I think that was the essence of Justice Brennans separation the believer, sort of having government involved in your religion demeans your religious beliefs. And i think that was his view, and i think that view is gone. I am not even sure there is anybody on the court that would share that belief. Virtually all at this time on the court, he paid personally for it. A few months after writing that opinion in 1963, he went to a mass in which the bishop was a visiting bishop from richmond, virginia, and railed against the court with Justice Brennan sitting in the front row recognizable to the bishop. At the end of the mass, Justice Brennans wife kissed the bishops ring and then said to the bishop, you are not really fit to have us kiss your ring, and they did not go back to mass for three years after that. When they went back to mass, they went to mass in virginia where they had a saturday night mass, where he thought nobody would recognize him, and nobody did for a little while, but i think things have just changed romantically. Dramatically. Well, that leads to the question about whether the same several people have mentioned the same religion or the same religious beliefs can lead to different outcomes in terms of ones the decisions that one is taken to. We have different politics. I wanted to go back and ask people, how would you draw a distinction between what a couple of people have mentioned about their religious beliefs against simply their life experiences. Tony, you mentioned Justice Scalia and Justice Sotomayor have experiences in Parochial School. And justice thomas. And justice thomas, as well. How does that affect their belief in School Voucher cases . Is there a suggestion that they are more open to that sort of thing . Maybe i have drunk the koolaid at the court, but i do not think so. I think the justices really do make an effort to separate their own, their personal views on things like that from their decisionmaking. So i think if they have experience at Parochial School it does not mean theyre going to be in favor of vouchers. Unfortunately, i mean, that is my perception, but there is another perception out there which is the opposite, that the justices kind of fuel this one. For example, you know, the late term abortion case. This was when there were only five catholics on the court, and all five of them voted in favor of this law that prohibited lateterm abortions, so that feeds the stereotype that catholics might be monolithically to advance the churchs agenda, but, again that is very much like, i think, the decisions where all of the republican appointed justices vote one way, and all of the democratappointed justices vote to the other way. I do not think it is materially difficult from other types of influences in the justices space lives. I think the question of identity, and identity factor in selecting justices leads to questions that are asked, for instance, at their confirmations about either their religious views or their willingness to separate their religious views from the court. I think, marshall, you brought up the question what can be asked. Well, you have to be ought to be you cannot come right out and say, do you believe in this, so, presumably, you have to crawl your way around it. But, invariably, the justices say that i am an umpire, or my job is to apply the rules. I am not sure if this was at a confirmation or afterwards. Listen. I just apply the constitution. Now, in my private morals, you cannot take me out of my skin, and my catholic, and i listen to the catholic doctrine. He can easily say that because he is an originalist. He interprets the text of the constitution as it was believed or understood at the founding. Many of the moral values at that time were also conservative values, so they would be in pregnant, you might say, into the original understanding, if you believe in a living constitution, then, in a way his morality views, they become more relevant, i think, so he can do it somewhat more easily than someone who believes in a living constitution or almost for the purposes of a constitution, where the moral view is in bedded. Now, whether one can actually live up to that is another story, but that, i think, is the general approach created even with brennan, at his confirmation his nomination hearings, and he had to say very clearly, i separate i made my peace. The constitution, in my public life i follow the constitution and in my private life, i am a good catholic. So people want to know. It is what it means you being a catholic. That is why i said there are so many ways of being a catholic, just as there are so many ways of being a jew that it is more the social identity that you have or that social background that you have that affects how you vote much more than just a label. I think it is important to note also that there is not a catholic seat on the board. Justice ginsburg has said some of the justices that preceded us were jewish justices, and Justice Breyer and i are justices who happened to be jews, and, certainly, president george w. Bush did not set out to put two catholics on the court. In fact, remember, he nominated an evangelical protestant, harriet miers, who did not make it, so i think it is much more that they look at the ideology of the person and their background then religion. I think there is an irony in that. For brennan, his catholicism was the main issue at his confirmation hearing. As marshall described, they asked him, if it comes to loyalty to the pope or loyalty to the constitution, what are you going to choose, and he basically said, senator, i take the same oath to uphold the constitution that you did, but there was a controversy over whether to ask him that. There was a controversy over what he might say, and then the irony is he arguably voted less consistently with what one might consider to be catholic views. I mean, he voted in right in favor of abortion and contraception. He voted against School Prayer. He voted against various forms of Financial Aid to religious schools. He is about as kind of anticatholic in his voting as imaginable. Now, we do not ask the question, and there is no controversy about it, and yet, we are here discussing asking whether or not their religious views influence them more than 50 years ago when we did ask the question and it was controversial. You have to be fair. People really do not think of death this ginsburg when she was nominated as a woman judge. That was more important to her identity, it was believed, and with the jewish justices, in spite of being jewish. Cardozo was nominated in spite of being jewish, so it was not only until frankfurt or when they thought he is replacing a jewish justice that we got into this notion of jewish representation. And what you have when you have three. Now there is no need for a jewish seat. You brought up a little bit about this question of whether talking about the religion of a justice or a perspective justice is really about talking about their politics. And could we talk about how that has actually played out in recent cases . Or instance, how is the catholicism of the various, now that there is so many, how has it played out in terms of the gay marriage decision, or even the health care laws, which you might have thought religion would play a part. Did it . I would say in the hobby lobby case, which is the case having to do with the right of a private business with the religious freedom act to refuse to provide contraceptive Health Coverage for their female employees. I would say that Justice Alitos opinion in that case very much was influenced by his religious preferences, because to exact the notion that a corporation, which is an artificial entity, can have, based on a manner of a religious police system, transferred to it by its owners. Aside from being pretty close to ludicrous, it is highly debatable in terms of a social philosophy. I do think that Justice Alito probably went into that case believing that corporations, because they are in some sense people even George Romney believed that, because they are in some sense people, you probably are capable of absorbing the religious preferences and value system of their owners. I think that is probably a pretty good example of that. In gay marriage, one of the reasons that you have to read the gay marriage decisions differently, i think, is that the lead opinion was written by kennedy, but it was driven by his liberty perceptions rather than by his catholic value system, and so when you get into that with Justice Kennedy, it is harder to trace religious sources of his jurisprudence when he is talking about liberty interests. I do think i wanted to bring up another example of where i think a jewish justices value system influences his jurisprudence, and this has to do with Justice Breyer, but before he was a justice, when he was a law clerk to a jewish justice, justice goldberg, what they remember, if you read the papers at the library of congress, they had law clerks, stephen breyer. He wrote an opinion, a contrary opinion, for goldberg, in a case on access to Birth Control measures, and he wrote a separate opinion which articulated the concept of a liberty interest as an emanation from the 14th amendment, which i think, is where that concept began inserting itself into constitutional jurisprudence and i do think that steve is probably driven by his kind of social justice instincts as a jew and believing that probably he shared those views, and that is why i think he was allowed to lay out that opinion, and i think it is not directly traceable to his religious faith, but i think it was certainly influenced by it. An interesting fact about Justice Breyer, just to show in modern times how these things can get sort of mixed up, he is a jew who was married in an anglican ceremony in which they omitted references to jesus, and he has a daughter who raises her children as jews, and a daughter who is added to skip alien priest, so he really has everything covered. I would also add in relation to breyer, i think one reason for the strength of his dissent in the School Voucher case was a kind of historical sense that mixing religion and politics in the state, in the school arena will brings up all of the old battles of religion, and i think the protestants would view this strongly related to it, and the jews would have strong things. Marshall, you said to me in a conversation before this that there were aspects to alitos hobby lobby decision about contraception that had to do with catholic doctrine on who is responsible. I do not know about catholic doctrine, but the different notions of what makes you complicit in an action, from what i understand is a lot of catholic doctrine, if you take a wide view of what makes you what action or not action makes you complicit in an immoral act, and it may be i think it is but it is wider than ordinary notions of complicity, which you could have indirect interventions that would make you not complicit, so would not say as some authority, because i am not, i suspect that some of these notions about what led to complicity may come from his knowledge of catholic doctrine. It is almost time to go to questions, but before that, i wanted to return at least briefly to this question up appearances, and, tony, i think you are an expert on something called the red mass . Can you explain about that . I would just mention it briefly. It is an extraordinary event held each year with the catholic archdiocese of washington. It is a red mass. It occurs on the sunday before the first monday in october, which is when the Supreme Court term begins, and it has become such a regularized ritual that it is like being celebratory kickoff of the Supreme Court term. This goes to the point, to a degree, that lyle was making earlier, that the Catholic Church may be more than other churches has made a project of trying to impose its doctrine on the judiciary and other parts of the government, and it is looking at it cynically, this is an opportunity for the Roman Catholic church to have a catholic audience that includes almost always six out of the nine justices for proselytizing or not proselytizing but sermonizing issues that concern it, and it is really i cannot think of any other institution that has that type of access to the Supreme Court. And for many years i have been covering it as a news event for probably 25 years or so. And in the earlier years, like in the 1980s, the sermons were very politicized. They would rail against abortion as a form of murder, that any law that advances abortion is immoral, but that kind of rubbed certain justices the wrong way. In fact, Justice Ginsburg that is the thing that not only catholic justices attend, but jewish justices a few weeks ago, justices kagan and another attended, along with, lets see, four of the catholic justices, but, anyway, Justice Ginsburg was so annoyed about one of the sermons, it was so antiabortion, that she vowed she would never go again, and she said that even scalia she is Close Friends with the scalia family, even they were embarrassed iv stridency of the sermon. Since then, it has gotten much more toned down, although there is still quite a bit of talk in the sermons about the separation of church and state and how it is appropriate for people of faith to bring their faith to work with them. And i think to have that annual opportunity, to make that plight , i think it is an interesting thought, and it is special to the Supreme Court. Whether the justices then go home and put into practice, i dont know. I mean, to me, the very existence of this event, and i recognize it has been going on for a long time, suggest its own impropriety, and regardless of what is said at the sermon, one of the core issues now in the town of greece, in the legislative prayer case 30 years ago, the argument that the prayer is not religious, it just has a solemnizing effect on that is what the Catholic Church is claiming it is doing here. Putting its own spin on the Supreme Court term. To go to the mass is to accept the validity of that argument. I think that is inappropriate. I think that is a little unfair. Whatever they are, they are autonomous beings. They are not going to be proselytized or overwhelmed. I dont know if the town of greece has anything to do with it. That is where there was an official state or government event. This is a voluntary activity. I called breyer the first year he went to be he said, it is unifying. It is a good way to start. Blessing the Supreme Court term. We dont get up set when a policed police priest or rabbi blesses the yachting ring. Some communities depend on the fishing season, the priest blesses the boasts. Boats. If you have ever attended the National Prayer breakfast, most of the congress and cabinet, including jewish congressman they are all there getting a religious message. We have this. Also, a kind of feature in American Society which is less focused on the separating or do nominal emotional denominational aspect of religion but religion. The way if angelicals used to think catholics were the the way evangelicals used to think catholics were the core of babylon. Can i said it can i say that on tv . I think it is extreme to say it is profit ties in. Proselytizing. There has never been a president inaugurated without a prayer. Let me being extremist. They are two places in washington from which Supreme Court justices should stay away religiously. One is the state of the union. A message of which is not low comedy, it is high comedy. It is a demeaning experience for a selfrespecting judge to go and sit there. Pretend to be interested in what is going on. Pretend to be detached from it. The other place they should not be seen is the red mass. The red mass when i grew up in nebraska, we used to talk about the fox in the chicken coop. Going to the red mass is putting yourself in the chicken coop. When the priest gets up, he is the fox. He is very interested in consuming those who sit in the audience. [laughter] just to be a little bit moderate about that, there are two bank places where justices should make up their minds that that is inappropriate to their job. Maybe we should stop on that note. Im going to open this up to questions from the audience. There are two microphones. We are asking you to go to one of them. And speak. You can maybe identify yourself before you do so. I was wondering about we have to justices who are involved with opus dei. I was wondering if you thought that was appropriate . It is a religious view. Unless you want to go back to the 1915 notion that catholic people in government follow whatever rome says, whatever the pope says, that is their religious view. They have the right to do that, like a jew there are no jews that are part of the unless you are saying that an orthodox jew could never be on the Supreme Court, that is a contingency. Generally it could happen. They could have their religious views. Im not saying they should be on the court or not. Im wondering how that might impact someone on the court. We can ask if there are any kind of activity that should rise to the level of disqualifying or recusing a justice from serving or serving on a case . Justice scalia recused himself from a really important case over the phrase, under god, in the pledge of allegiance. He had attended an event at which his son, a priest, appeared. Justice scalia undertook to opine on the issue. He did thereafter take himself out of the case, did not participate. Which i thought was entirely appropriate for him to do so. The inappropriate thing for him was for him to go out in public and take a position on something he knew was coming before the court. This is another case that i have noticed. This crop of justices loves to sit on Public Forums and opine on what they are doing in their judicial business. If you want to know why the Supreme Court is not yet hearing the gay marriage cases, just follow Ruth Ginsburg around to various Public Forums. She will to you inside stories about what is going on at the court. If they are only granting and the settings of the five cases a 75 cases a year, it seems to me they could grant a few more if they would cut out some of their public appearances. Anybody else on that . Another question . Im hoping the Supreme Court will weigh in on releasing withheld records regarding the jfk assassination. Indicating cia complicity. It brings to point an interesting statement made by the cia stood for catholics and action. We are a bit very Roman Catholic culture. I would like to draw a question to you from a very important book, entitled rulers of evil. it traces the influence in western history of the jesuit order, the military order of the roman church. It points out that the jesuits in history, they are a military order. They report to a general. Question . Roman catholics participate in confession. Jesuit priests are among the confessors to the bus powerful new world, including Supreme Court justices. It can work as a twoway process. The Reform Church does not have confession. Is the jesuit confessional process a factor in how Roman Catholicism and government officials who are Roman Catholic can be influenced from rome . I would say that is an exclusively a private matter. I have various people to whom i go and make confessions about my inadequacies. Im not about to pray that to parade that before you tonight. It seems to me to ask a justice to reveal how they practice their faith is to go way beyond the pale of proper Public Discourse. I am the legal director of the center for inquiry representing atheists and secular people that scalia dismissed. I believe it was, they will never be satisfied, we dont need to consider them. We were talking about complicity in hobby lobby. This new idea that the catholic majority has brought in. If you make it easier for somebody to commit a sin, that sin can be placed back on to you. The owners of hobby lobby were allowed to not provide contraception. How does that fit in with the concept of the judge as an umpire . Surely, if you have five justices who believe, for example, a portion is a sin abortion is a sin, if they make a decision that says abortion can be legal, under that same. Of complicity, they are getting a sin themselves. Can they really be expected to make a decision as the umpire . If they are turning around and are on record as saying, that would be sinful . Anybody . You spoke about that a little bit. Im not an expert on catholic doctrine. I cannot answer that question. In general, one benefit you could say that the Catholic Church has. They believe in a general confidence between faith and natural law, reason. From that perspective, they might come to a view that one might call a sin. But they will see it as an aspect of natural law, reason, which is a Public Discourse open to everyone. Anybody else . I would say, i dont think the court was necessarily advocating that as their own view about their own role in complicity. Rather, whether they were accepting that view as advance and the parties of the case. To my mind, the theoretical problem with hobby lobby is the court possible inability to separate the entity or the corporation, which is totally artificial. It is set up for one purpose which is to make money. To reward stockholders. These were private corporations. They were nonetheless creatures of state law, created not for the purpose of propagating a religion. The families who own those two businesses argue they have run their business in a religious way says more about their faith then about the corporations capacity to have a faith. How many times have you seen a Corporation Get down on its knees and pray . I have never observed that. That was the theoretical problem. The court could not see the distinction between the owners and the corporation. The owners had undertaken to express their faith through the corporation. It was no more and less than a private is this entity business entity. The court was interpreting the religious freedom restoration act in that entity which was an act passed by congress in reaction to a Supreme Court decision that did not give with the congress that was proper protection to peoples religious believes. The Congress Passed a law by both sides, liberals and conservatives. They came together to really bestow great protection for peoples believes religious believes. More than they thought was in the First Amendment. I think it is important to realize that was what the court was looking at. The court was looking at a particular word in that statute, which is person. The question is, is a corporation a person . Capable of experiencing religious freedom . I know nothing about the evangelical doctrine. In jewish law, the owner of a private corporation is responsible for the sins of the corporation. The owner cannot profit from quote sinful acts. It is not just like some sort of strange view they have. It is in other religions as well. That person has a religious view. I dont want to go overboard here, but i think in jewish law, you cannot profit from the sale of unkosher products. You cannot say, my corporation is doing that if it is a private corporation. It is not some set of weird view of the hobby lobby people. Others would have that view. Religions believe, the individual carries over to the private corporation. Not to a public corporation. Just to finish on that. That shows the huge problem we have at the moment of bending over backwards to accept any religious belief as being sincere. We had hobby lobby saying, providing insurance for contraception is a sin. On the other hand, we had them investing 72 million in the very company that makes those products. Isnt that a problem, that we except those police . That we accept those religious beliefs as sincerity . We have lots more questions. Marilyn. I say, there are five men that remind me of what used to be a nine man Supreme Court. Im not up to speed on how many women are currently involved in covering the Supreme Court. With all due respect, the issue of decisions and decisionmaking by the Supreme Court, we have focused this evening on their opinions on specific cases. My question is, what role do you all believe that religion plays in their decision to your hear specific cases . Does, in your opinion, religion come to play . And, perhaps has anyone ever considered the red mass being inappropriate case to bring . Let me parenthetically say, we are aware of many women who cover the Supreme Court. For a variety of reasons, none that we reach out to where available. This is no reflection on the wonderful panel. To have indeed been a terrific panel. I said it tongueincheek. The visual is the visual. It is very hard for any of us to answer a question like that. It is such a secretive process in which the Court Decides which cases it will take. It only requires a vote of four justices to decide to take a case. We rarely get any kind of idea as to what it was that caused them to take some case and not another. We witness that this term. Witnessed that this term. Once in a while, a justice will write meaning, here is why we think we should have taken this case. Sometimes it is a signal for the next person that we would be interested in it if we can make it fit this category. I think it is tough for anyone to say why the court has taken a case or not. I would say that it is a court that is increasingly comfortable with the presence of religion in the town square, Public Square life. That is why they took the town of greece decision. Is that because of their own religious views . Nobody can say yes for sure. It is hard to think it is not. That their acceptance of religion in the town square is not a reflection of their religious views. Is there a direct cause and effect . I dont to get anybody can say. I dont t think anybody can say that. Another way to say this is, if the court had eight yes, they might not taken the case. Atheists, they might not have taken the case. We have a court that is comfortable believes there is no problem in religion playing a greater role in the public life. I think that has been a significant change in recent years. As far as the case of the red mass, i dont think that would make it to the Supreme Court. I dont the would make it past summary dismissal. It is not state action. Attendance is not obligatory. They can hold the red mass anytime pleases. I would say one thing. When you talk about being more with religion in the Public Square, one thing that has struck me is there is a tendency to see what one might the one might think of as religion as general custom. Take the menorah. They are approved on the notion that they are a culture thing. One of the ways in which there was more religion in the Public Square and the court is comfortable with it is by the secularizing of the religion. It now constitutes a generic religiosity. I dont want to go into that may explain some of the what you might call relaxation. Another question. In the context of there is no religious test to hold Public Office my proposal, i like to hear comments on my proposal. Having people who are swearing into this office of congress or the Supreme Court, the presidency, swear on the Constitution Institute of a religious document such as the bible instead of a religious document such as the bible. Was quoted as saying you put your hand on the bible and swear to uphold the constitution, that the other way around . Anybody want to talk about this . You dont need a bible, you can use it for ron. A koran or whatever your meaningful text is. You could use a secular humanist document. For somebody who is in absolute revelry, give me a manual of how you calculate the stars. I would swear to almost anything on that. I dont think justices should be in the vanguard of a Cultural Movement to bring a particular nonreligious or religious perspective into public life. If there is anything that has been secularized, it is the use of the bible as a platform for public of taking. Oath taking. It strikes me as being devoid of anything other than symbolism. It is hard to take it seriously as a religious indulgence. It just happened that away. The first president who refused to do that is likely to not be reelected. In a country, rightly or wrongly, still thinks of itself as a christian nation. Your question reminds me of a small way in which religion does make a difference on the Supreme Court. When you become a member of the Supreme Court bar, traditionally you would get a certificate that says you are sworn in on may 4. The year of our lord, 2014. Justice ginsburg says it said she had heard from the docks from Orthodox Jews that the year of the lord was not something they wanted on their certificates. It was offensive to them. She said later on a another justice said, it was good enough for brandeis. She put up her hand and said, it is not good enough for ginsburg. The court changed their view. It is now an option for members of the bar. Not to have that phrase. Mitchell. Recovering and retired litigator. We have not talked about specifics. I want to give you an opportunity to talk about one. I have heard it said that Justice Scalia exhibits his catholicism in what is perceived as his greater deference to religious organizations then individuals. Two large groups rather than small ones. The accusations is this is typical of catholic difference rather than protestant emphasis on individual conscience. I would like your response to this. What does it say about our society that the response of a great many people out there, especially among the younger generation, to the idea of the court is a hohum . I guess i would say that is a good thing. It is not seen as much of an issue. It is probably a healthy thing for everyone that there is not seen as, these seats should be distributed on some sort of religious basis. I think it is seen as an interesting fact that there is not a protestant on the court, for the first time ever. Im not sure people think that is a big deal, or at least if it is it has not been communicated to me in a way other issues about the court are. From readers and the people. And other people who are interested. Im not sure what you mean in the first part of your question by respect for religious people or organizations. I im not sure if he chose that in his judicial activity that is an observation made by more people than just me. Personal . His judicial opinions reflect that. Im not sure that is true. On the last point you made related to Large Organizations it is true in this myth case they said if there was a secular reason to restrict religion, it is ok if an individuals religious beliefs are curtailed. Congress can change that. It is True Congress to change that for larger religions. That is called democracy. Congress would be more likely to make rules does democracy require that personal freedoms be subject to majority vote . That is a bigger question we have more questions. We might get through them if the them get too elaborate. First. All right. You have a question . I am wondering if you can address the issue whether judges in the Supreme Court or local court, whether they uphold the constitution. They are inconsistent. They dont really explain the reasoning, rather than say, it is just religious. The religious groups or churches influence the number of voters. They dons they dont explain whether they support abortion or not. The question is let me responded this way. If there is one accusation that cannot be made about the Supreme Court of the u. S. It is that it does not explain itself. The Supreme Court explains itself much better than any other institution of the national government. It may be that people dont read the opinions in the close way they do read something that ted cruz has said. [laughter] or paul ryan. One of those wise members of the legislative body. The Supreme Court does explain itself. The materials with which it works are public materials almost entirely. The last time i remember, the Supreme Court dealt with a case in secret was the pentagon papers case in 1971. The Supreme Court deals with business that comes in the front door and goes back out the front door. It is incorrect to say they do not explain themselves. I am jewish and a graduate of Harvard Law School. I am jewish and a graduate of Harvard Law School. I guess that makes me a prime candidate to be a Supreme Court justice. I wrote an article entitled, isnt it time for a jewish justice . It seems we have had an embarrassment of riches for jews and catholics. There are six graduates of Harvard Law School and three of yale. This begins to raise the question of diversity in every sense of the word. Very few of the justices have been in private practice. They used to tell story of how Justice Marshall could relate his life and so on. The question is, what do you think about the urgency of trying to encourage more diversity in the court . I must correct you on one thing. We just had this mistake in the Washington Post. I have been hearing about it for the last two days. There are only five graduates of harvard. Justice ginsburgs degree came from columbia after she spent two years in harvard. Justice thomas, at an event at yale, that is the one he picked out as a problem for diversity