Transcripts For CSPAN2 Book Discussion On Dissent And The Supreme Court 20151114

There are things to be learnt but i know talking to other people it is important and also to be pleasant to. [laughter] [applause] [applause] [inaudible conversations] thanks for coming out to politics prose. Please silence your cellphone that this time. Please come up to the microphone this is not the last event now we would ask you to leave the chair is down for the next event. On behalf of our orders of politics prose and our staff will come in addition to events with a different menus across the city. Lamp pleased to welcome Public Policy to present his new book its history and the constitution soon dialogue. To study american was the goal history. With those decisions of lifetime of scholarship for the am standing read. So of that opinion of the majority over time with the ongoing debates of the constitution and shows that judicial dissent. Professor urofsky. [applause] it is so is the pleasure to be at politics prose. How shall i dissent . Let me count the ways. How they saw the movie very papens . Very papens do you remember the scene when they had the twoparty of the ceiling is she sings the song to get them down and that it is a great way to start so i called the disney people asking if they could write a song about dissent. So lacking a song and given my voice in my very best in you know, who wrote the first quotation. Ion at able to read the judgment of the majority of the court useless and undesirable to express dissent i feel bound to do so in this case. Oliver wendell holmes. The Great Supreme Court dissent is from the future generations when the time has come. I show in silence acquiesce they often do arms lead us not into temptation. The right to dissent is a with a man makes life tolerable. I had about 300 of these people that disagree with the whole idea of dissent. Last year there were separate opinions to out of three with the u. S. Supreme court the percentage is likely to be higher with highprofile cases. This is that pattered ever since the early 40s. Through the 1940s with 95 percent or better and you can tell who won in the kids always tell what the reason was. He believed it would be better for the court of the coequal branch of government. This is the belief of some juries because it carries more weight. End in an 18thcentury with the dread scott decision they did not have the impact until they settled the issue. Then they got us to treat corporations. And is considering is to have an impact through this day. Moreover even if the justice did not agree with the majority opinion and then my notice a separate opinion. The court heard almost every kind of case. The bigger suitcases if you remember fiddler on the roof those cases could before the Supreme Court. It is important only to those who are litigating it. And then we get the sense with that total caseload if you look at the total number of descend that they wrote us then 10 percent of the total number of opinions but they as began to change with William Howard taft that gave the court almost complete control to be really a Constitutional Court. The challenges to laws and state or federal constitutional grounds. This happened with the income tax cases and then with a statutory, interpretation what does this mean . With the thousands of aids to write a law that is understandable to everybody what the court has said this is the leading cumene and if not then rewrite it. In a Constitutional Court and then tried to be true to them. And not say there wasnt any constitutional cases but the majority to require consistency. Now as the majority being constitutional they had to be decided right end of the justice disagrees they felt it is necessary to explain why. There are many reasons it year tried to read the Supreme Court case loaded with footnotes it is felix all. It is loaded with the law review articles as the most incomprehensible to everyone else. Hero more dissent than majority opinions because he wrote his opponents felt you would get cases mentally with the majority opinion and the cases of nine separate opinions. [laughter] and then if it started to will supply worth of clerks. Brandeis in the other it was a large investment so you take this one as much as we want. Is that a constitutional dialogue . This takes place between the court and other branches of government. It is a dialogue that takes place between the justices and the members of the Supreme Court. Let me quote ruth cater ginsburg. Methane better to lead the author of the majority opinion. Illustration. The case decided by the court 1996 that the denial of the commission violated the equal protection in clause. The final draft released to the public was better. Amasa hard to read that way that would do the best i can [laughter] and at least one dozen more drafts of eggs to the dissent now we go to Justice Scalia who is the ginsberg good friend and occasional nemesis the fact never comes to public light it often causes the majority to eliminate the more vulnerable assertions and of the gold ruble. Assigning field in for the court to give some assurance i have written it will that i can respond satisfactorily in my judgment to the descent of a separate concurrence it is a higher percentage of the worst opinion of the court and the reasoning is unanimous. Good judges are talking to one another and sometimes they change their mind. Plan had an experience she said of writing a dissent for myself and one other justice in time it was the opinion of the court so there is a dialogue sometimes after the vote repeals the majority is year in the minority its your but then we see not just the strength of different arguments but the weaknesses as well. But this is important of the dialogues that are taking place that happens every term in almost every case. Between the branches of government which is congress. For example, the opinion that most academics they was stupid the court held that within two suffered discrimination of pay had to report within six months of discovering and. You have Lilly Ledbetter that didnt discover it over 20 years because the men didnt say i make more then you so how did she know . So just as ginsberg writes opinion that says it is statutory interpretation of this is it what you meant then rewrite it the same day a senator introduced a law and the president george w. Bush friend to veto the bill one of the first things obama did was invite the congress to pass it and they did and he had a big signing ceremony. Of course, there is the dialogue between in the president and the court suit to be in the ninth state status george bush will be dated and they said they are entitled to due process. And there is a dialogue between the court you may remember the federal this paper called the court the least Dangerous Branch because it has the power of the purse the only power the court has is the goodwill of the people. Like dread scott in the 19th century there used to beat hullabaloo over roe v. Wade but for the most part the judges are much more adept with the public. Finally there was the conversation between the dissenter and the future courts some people call a prophetic dissent chief justice use said a dissent is an appeal to their brooding spirit of a law of the day when a later decision may possibly correct the error that the dissenting judge of the case that was made. One example is hugo black 1942 case charged with Armed Robbery ask for a lawyer and was told the lawyer was paid for by the state was only available in capital cases. The Supreme Court upheld the decision. The sixth amendment stating that the admonition of the safeguards then justice will not be done the average defendant does not have the professional legal skills for a tribunal where the prosecution is presented that that is simple and unnecessary for a lawyer with intricate complex and mysterious that was 1942. Over the next 20 years every time a case of representation came to the court, it was there. Eventually every single case was overturned on a technicality to say of course, you have to have a lawyer if it is a complex case or if the person lacked the mental capacity to understand what is going on. So lack of mental capacity and technical cases they kept overturning but they would shy away from overturning the law. I will tell you a story how the court works. By the early 60s the core was ready to overrule but italy take cases that come to win on appeal. So warren telesis clerk to start looking for cases involving the sixth amendment. There were three cases. The first involved a man who had sexually molested his son and daughter and there were plenty of witnesses. He was guilty. No question they would not overturn based on that. The second are two guys who committed an Armed Robbery. In one of them did the right thing he read out his colleagues. But now the lawyer had a problem is one quietudes pleading innocent and then another the court refused to appoint a Second Player so that case comes up in the court did not want to overturn a case in favor of someone who was guilty. Enter the next case that allegedly had robbed a pool hall and was convicted on the basis of testimony of the guy they think really didnt and gets to prison where he spent a law of his life if he writes a handwritten petition to the Supreme Court for review. The Court Appoints a lawyer to represent him and unanimously overturns on the basis of hugo black he said never thought i would see it overruled. Most do not live to see themselves vindicated. Oliver wendell holmes, alien to brandeis but the offer of two of the greatest but were ever written although the first bid that was the concurrence but was a dissident it wasnt accepted 40 years with the end for those that was along the lines. But to be adopted as a case study by the Harvard Business school. During the prohibition era he realized he could make more money bootlegging. He raises money through crowds sourcing end he starts a bootleg operation. They had votes he did deal the step that could make you blind but the good stuff from canada. He had a farm along with the implants in oregon in the basement where they stored it for a fleet of cars to deliver with the bank of telephones and you would call and have it within an hour. He was rarely rated because his brother was on the police force but the state of washington did a really care. Your capsule lee refused to enforce it. So the feds come because you wish using modern technology what had to dial in the wire they had to alligator clips on the phone line they sat there and it was quite clear review is doing. Is arrested and convicted and appeals to the Supreme Court and the majority opinion is so polluted you feel like carving it out with a knife. Therefore the fourth and is not violated. Brandeis rights a dissent that does two things. One of which is to completely revamp how it forbids search and seizure. What that means is the Justice Potter stewart both amendments protect people but the more important a nifty introduced were the first time the notion of privacy is a constitutional right. We want to order great to set does dissented has the backs of the case as the reasoning. Even though they may agree on the basic facts, most justices today at the time, the factual part it will be harder for them to argue. The second part it has to be the logic is impeccable. And it has to be written well. Unfortunately in the 200 years of the Supreme Court there would be counted on the fingers of one he and Oliver Wendell holmes holmes, brandeis occasionally, Robert Jackson , and anthony scalia. If you dont like what he writes, he writes is so well. The makers of our constitution and under those conditions favorable to the state of happiness. There recognizes that only a part of the pleasure should be found in cereal finance for. But they conferred against the eric everett to be left alone the most comprehensive and to protect that right everyone just a file with dash justifiable interested in a matter that the means employed must be deemed a violation. It took 40 years for the court to catch up some say there is still the right to privacy. Brandeis did not live to see this but he said his faith in time is great. But now to the Current Court. Into this khalil like to see himself as the great dissenter. He has almost singlehandedly interpreted the clause and what it means. To overturned convictions without a warrant the use of marijuana sniffing dog outside and then people were driving around to grow marijuana you need a law of white if youre in california you cannot see the house so they were driving up and down the street with a heat seeking device ensure enough so he follows that exact same logic of the wiretap the refuses to cite that case because of privacy. Now let me read just a couple of quotations from his honor. In his dissent of the case scalia dismissed the majority opinion as pure apple sauce n said it should be named scotuscare. Calling for the protocol of legal objection it has come to believe the eighth amendment may be violated and scalia said Justice Beyer did not reject the Death Penalty but bmi in mint. The last term regarding samesex marriage to characterize the majority opinion is as mystical as a Fortune Cookie but he ever joined in the opinion opinion, actually scalia has written one of the great prophetic decisions of modern time. And bill think he meant it that way. A few years ago in the windsor case, her partner had died and left her money. And the court upheld and kennedy wrote the maturity opinion. He tries really hard. He really did but the decision that marriage has been up to the states of the state says it is legitimate then they have to about to equal protection in the illusions. Id he wrote a nasty opinion the and this is how they will do it. They filed a suit another in pennsylvania following is exactly that is was khalil said they would do and sure enough but not as he imagined. There is a law more stuff in the book some of it is amusing it is not a a history of every descend. You may iran not find what you are looking for but what i tried to do was get dissent to illustrate the point of a constitutional dialogue. You will soon find out. To get. [applause] we have a microphone for questions. Sometimes justices will actually read their descent and the head in the comments of that . It is where they really feel strongly about it. One of the deans and the chief justice will announce within a very short summary of why the breadth people are really angry sometimes bill read the descent from the bench. It does not happen often go. I would like you to comment on to new crucial decisions of gore forces bush in Citizens United. In both cases the gave a disaster with bush and Citizens United it created the whole sense of democracy i will do bush forced first. Bush vidor is the one often set a precedent the following year in new jersey the Democratic Candidates was convicted and sent to jail that was passed filing deadlines so they called him out of retirement andhey calledm out of retirement and marburg the Republican Party went to court to use bush v. Gore or reason the court said that has nothing to do with the case. There has not been the case since then that has been decided. I am neutral on this point but seven colleagues believe the court had twostep bid to avoid it even worse results for the Republican Legislature of florida to decide for bush that this would have been Public Perception because jeb bush was governor at that time. Because he could pull strings for his brother. So that doesnt carry much weight but neither does the majority it was one off we will mossy another in our lifetime. But the iraqi war . There were a law but we dont know what al gore would have done. The second part, im not sure yet about that case. Even though it is a constitutional decision, it was not decided well with the majority opinion. Let me go back. Several years ago i wrote a book on mcconnell versus the federal. [null] commission this was the law that came before the Supreme Court for the first time and all the provisions were upheld but the problem was this was a challenge to the law that the court doesnt like but they had to but what is when they say the law could affect me but we dont know if you will learn not Mitch Mcconnell said i could have trouble raising money for reelection in he was just reelected. So they were not impressed by that argument. Historians like to look backwards when somebody says what is going to happen i say i am a historian but not a profit. But i said i would be a profit this time so as soon as the court when the law actually did something to someone and they will not uphold on First Amendment grounds. But for the most part, we do not restrict people spending their own money. Also let me give you a different, a little different example one eyes to tell my students. Let us assume for the moment i am inarticulate and i cant get up. With my son making faces. Lets assume i am inarticulate, i cant get off the floor okafor crowds. I have strong opinions, okay . Marketeer however likes dashes running for office and it turns out that every one of marks come the ideas i told mark supports, okay . Now i want to help him. Anything wrong with that . If i give if i give mark a lot of money thats my speech. Thats my speech. Im using my money to essentially get my ideas out there. The First Amendment protects that. Now the question you raise and one which i dont have the answer for is when we get into these megaquantities and what to do about that. But in terms of you know the book i wrote was money and speech. In politics they are the same thing. Without the money there is no speech. Yes sir. Just a quick question. You mentioned the Current Court is what did you say, the nasty court paid can you elaborate on that and what effect that could have . Up until fairly recently, the court at least publicly with civil. It had people and James Mcreynolds was an antisemite and used to leave the room, Conference Room when brandeis spoke. And Felix Frankfurter who hated anybody who disagreed with him. And then you had other people who are less than nice but if you read u. S. Reports which are the official reports of the court you would never know this. There was a civility about it. Mull over moreover who was it scalias had a series of dissent back i think in the 90s. They were called that sandra. Every time she wrote a majority opinion he essentially wrote that they were being called. You dont get that and one reason is because if i dissent from the majority from you today i may need your vote tomorrow in a case in which i feel very strongly about so im not going to go out of my way to offend you. Now scalias, i wrote an oped piece for the Philadelphia Newspapers in which i said that scalias has essentially been a failure. When he was appointed in the 1980s, conservatives cheered. They were finally going to get someone really bright, really articulate, which he is, defied william brennan. They sought as even after the court had majority of appointees by republicans was still pulling majority opinions out of a hat. It didnt work out that way. It turns out that scalias is much more like william o. Douglas, the most liberal member of the 20th century and douglas said the only soul i have to say this mind so he never tried to get people to join his opinions. He never tried to build coalitions. He didnt care if somebody signed on to his opinion and scalias been the same way. So instead of forming a conservative block that was strong and for which he was an intellectual spokesman take a look at what happened last year. Conservatives were all over the place. And Linda Greenhouse who is the former New York Times Court Reporter has said that this nastiness is seeping down into the lower courts and she cited some lower court cases where the dissent essentially said that scalias can be nasty so can i. I dont know that answers your question completely. You are next, maam. Go next. Go, go, go. Okay, im not a lawyer but i am very angry about some of the courts decisions particularly the Voting Rights act which i believe is the one where Ruth Bader Ginsburg read her dissent in full, so its relevant to your look. It seems to me that it gave no deference to congress. And dave it gave deference to congress but roberts made it quite clear in that opinion that the case relied on situations that had existed in the 1960s in which congress had never revisited. So for example, did a certain district still discriminate against blacks or not and what he essentially told congress is you have the power to pass this law under the 15th amendment but you cant pass a law based on data that is 50 years old, so bring the data up to date and you are good. And he made this quite clear. He said to the congress, you have the power but it has to be current data, not 50yearold data. But of course this congress cant get anything done so i would say the blame lies as much if not more so on congress because roberts opinion is not without merit in terms of if you want to be judged on what you were 30, 40, 50 years ago or on what you are now . Well if they knew that a number of states that were covered by the Voting Rights act were just waiting as was the case. Thats not the courts goes. But the other thing, well first there were defense hearings in 2006 when they had was renewed with the huge amount of material and second, isnt it the executive branch that determines which goes. Congress and the Voting Rights act and 65 specifically identified both states and districts, not the president. The attorney general had the responsibility to enforce the law. But the case they came up involved a small Water District in texas. It was nowhere like it was in fact it hadnt even existed back then so i dont like the results of it but their reasoning is perfectly sound. Thats what the court has to do. This is part of the dialogue. They told congress he want to have this lock, youve got to have an upstate law. Perfectly reasonable. Why wouldnt the constitution cover that . Well the constitution, the only part involved would be the 15th amendment which is opposable war amendment giving the former slaves the right to vote. And how does the constitution keep the laws uptodate . Oh, the court does that. But if thats the grounds, i mean another thing that bothers me is scalias is an originalist originalist. Except one is not an originalist. He can find an originalist reason for almost everything. Okay, well. Yes sir. I live in italy. Many of my friends are lawyers. Some have argued cases before the italian court. With the Citizens United was passed in the United States they predicted paris ghani and american model of the self financed millionaire billionaire. And look what we have. You said that, i did not. If you want to give your friend money for running for Public Office make sure its public funds. We have been trying to get public funds for ages without very much success. Citizens united,. I wasnt clear on that point you are equating money and speech but i thought i understood earlier he did not approve of the decision. I for one think thats a legal fiction just as corporations are the legal fiction, no disrespect intended, i dont see money equates to free speech. In an Election Campaign if you have no money have no speech. You cant buy time for your ads which is this form of speech and you cant die the yard signs which are a form of speech and you cant afford to travel to get you from one venue to another to give the speech. You do need the money. Now my problem with Citizens United was that it took away all restraints. Its not that they allow money to be used in politics, and nor do we really expect a level playing field. No one has ever suggested while people have suggested that all candidates be restricted to a certain amount of money and no one has ever thought that was a good idea. Im not a student of the constitution but it does seem to me many of the values in the cost situation are usually weighing test between different minorities and it seems here where you have money out of control which is what i believe you are suggesting now that the balance is so far out of kilter that could not the court take that approach and rationale . Well thats what the minority did. Its not a simple thing and i dont want to try to make it seem it, despite my example. I wrote the book on Campaign Finance reform. I wrote the book on that because my wife and i were down in williamsburg having lunch with an old friend and he asked me what i thought of mccainfeingold. I said well i think its not a bad idea. Eric said no. It restricts speech and eric was a true aclu from the beginning. He and his wife marched in louisville civilrights before it became fashionable for people to do that. I did not question his credentials at all. He didnt he said anything that restricts political speech is bad. Thats why wrote the book. Now i think i can say hes wrong. Forgive me if you said this earlier because i came in late. You mentioned Potter Stewart in the decision. You think theres any chance that might have a prophetic role in creating a potential car as we look at the potential for practices like mine, might it pass the test of being nondenominational . We had one that came out of alabama. The court struck it down because the sponsor the bill said and in that minute the teacher should lead them in prayer. I mean that was not too bright on that guys part. First of all nothing stops children from praying in school. Any math teacher will tell you that, okay . Secondly, in many schools now they actually set aside places where Muslim Students can leave the room and do their daily prayer. What the court held was the cant force a child to pray. You cant prescribe the prayer that you force a child to pray. Wasnt stewarts dissent more nuanced than that . Would the was looking at tradition. He also i think dissented in the bible. I think though history pass them by for this reason. When he wrote this is 1962 when we were still overwhelmingly a white anglosaxon christian country. I think within a few years whites are going to be the minority in the voting population. Susan, how many languages in the Northern Virginia School District . In one School District. We have become an extremely diverse country which we work at that time. I mean we had one large minority bloc, the roughly 10 or 11 . The only hispanics within new york city and they had come from puerto rico and we hadnt had the cuban migrations yet, no one was paying it is attention to what they called in california because they were needed to harvest the crops. Now we are far more i dont think anybody even knew about islam. Thats something arabs do, right . So i think stewart was on the wrong side of history there in what the country had become. So yes it was nuanced and it was more written but the country which makes it irrelevant. Last question im told. I may have misunderstood that i thought you said one of the cases earlier in your talk that one of the Supreme Court had his clerk look for particular case. Do they do that . How often does that happen . Not often. The reason was that they were getting ready, the Majority Court had decided that should be overruled. Many states have argued opted laws providing lawyers. I think they were all men handful of Southern States that still didnt but ill bet. Brady was on the book the court kept getting one appeal after another on the sixth amendment and wanted to stop that so they said lets get a case where we can overrule betts but the first two they came in they didnt want to use. Remember the court controls this docket. I had a case, urofsky v. Fillmore still studied, which was decided by the fifth circuit circuit the Fourth Circuit in richmond. The Supreme Court didnt take it in what i have always told students have asked about it it was absolutely right he didnt frame the question the right way that they would have been able to answer it so the court, they only decide 75 cases a year now. A lot of things, to give you one example theres a case coming up called fischer v. Texas. Dealing with affirmative action. Way back when, the dealing wit. Way back when, the Circuit Court , the fifth circuit in texas . The fifth circuit in texas. The fifth circuit held that texas did not use race as a criteria for a commission. Which meant all of the states covered by the fifth circuit were held to that loss. The Supreme Court refused to review it. Why they refused they never made clear. They just refuse but a few years later they took almost identical case, two cases actually from the university of michigan one dealing with law school and one dealing with college and essentially overturned fischer v. Texas of the court takes a look at not only what was the case but was it framed in such a way that they could say what we want to say about it . Actually could they go out and speak . They have to look at what comes than that they get almost 10,000 a year for which they pay less than 100. [inaudible] they have to take it