Home to New Hampshire in late spring and spent some time talking with his High School Music teacher she knew that he went to Harvard Law School but didnt know that he was working with me and she kind of unloaded on him about his great disillusionment with the Supreme Court. She had been looking at the headlines about how partisan divisions seem to be any one of the people whose journalism she respects, people like Linda Greenhouse were saying this is a very partisan and polarized court. Why should i trust these guys and my student tried to reassure her that its not as bad as all of that. She wasnt convinced. She told him she had listened to the confirmation hearings when john roberts was going to become the chief justice. They didnt find the analogy very persuasive and said that the new chief justice says that hes only going to be an umpire calling strikes. Its all neutral and objective. People dont go to the ballgame to see the entire. They go to see the catcher. They see the pitcher. The judgment about the strike zone as one empire observed that as a living and breathing document of the way that some people might describe the Supreme Courts constitution. She was a lot more convinced by what elena kegan said when it is nowhere near that robotic or mechanical, especially in the top cases which are the only ones that reach the court. Judgment is involved. We bring you the results to the process of deciding cases. She said look if it isnt what roberts claimed. They are serving for life and an imposing their political preferences on the rest of us. Max is a very loyal Research Assistant and his reply was read larry tribes book. Good for you. The empire and allergy and it did contain a germ of truth namely good judges like good umpires should apply their philosophy is consistently. To bring home the pennant or hurt their political adversaries. That much is true. But of course the empire and allergy is a vast simplification that suggests that personal judgments, personal understanding of what the constitution is about, but its ambiguous terms mean, what our National History commits us to has nothing to do with it all. Ambiguous language like liberty, a quality and what the role of the court should be and how after the roll should play in American Life all of those things dont come down. They are not written in stone and we shouldnt expect the justices not to bring their personal philosophies to bear nor should we expect to find their philosophy striking us as right or even as neutral when we might be coming from different worldviews. Elections of course have consequences and the selection of the justices by a series of increasingly conservative republican president s with a certain perspective on the world and on the constitution is among those consequences. The umpire analogy is off base, pun intended to the extent that it pretends the system expects judges to be blank slates and bring nothing of their views of the world and of the law to the table. Associated urge his music teacher to read the book and said it would teach even legal experts important lessons but it would also be fun, he said, for her and other non lawyers. Its filled with stories from everything from fascinating cases to the justices personal discussions with things like baseball and one story that he mentioned was about the justice stewartss devotion to the Cincinnati Reds which extended into making sure. While he sat in the playoffs between the mets and reds. He knew his bosss priorities and a minute argument o imminene technical preemption case he sent a note. Agnew resigns in that order. [laughter] my Research Assistants went on to read the justice which he hadnt read in a couple footnotes and its likely touched the tale of an elephant into Something Else touches the trunks but nobody has seen the elephant. Five to four splits in the partisan lines made good press but it turns out only about one fifth of the cases became the chief justice in 2005 have been divided byfor. And at least one third of the 54 splits involve unlikely bedfellows. Like alignments where one of the liberals like breyer or sotomayor or kegan join with alito to create a 5for a minute in which they are the other three liberals who is invariably more protective of privacy rights and more liberal of breyer or any other justice. You wouldnt know that from the reputation that is probably a house nurtured as a radical uncompromising conservative. Just yesterday, for example, elena kegan led a 54 decision that was against immigrant children who had the bad luck to turn 21 before their parents dropped to the head of the slowmoving line for the immigrant visa. They were joined by anthony kennedy, the republican, ruth ginsburg, democrat, and the opinion written by roberts and joined by scott leah. The dissenting justices that ruled in favor and 21 after his mom would emigrate from el salvador in 1998 had waited in line for eight years. But it was his misfortune. He turned 21 and had to go to the end of the line. They were also unlikely bedfellows. Clearance thomas, samuel alito and Sonya Sotomayor. With lots of the device cases you get these unusual alignment. There is a decision that the book deals with in some detail where kennedy led a 53 majority and was refused for striking down most of arizona. Scalia wrote a dissent that called the courts decision mindboggling. He went out of his way and outside of the record of the case to attack obama for something unrelated to the case. His use of executive power to favor the immigrant children known as dreamers. The Washington Post that usually selects the president or senator or cabinet member for the owner bestowed the worst week in washington prize partly because he was out voted in the Obamacare Decision that came down. Those are just some examples in the book and it deals with them and explains them. Its not just of the cases as a bare majority that exposed the fallacy of the increasingly common description of the Roberts Court in the rightwing political hacks. There are plenty of rulings which accounted for nearly half of the decisions in 2012 to 2013 in which the nine justices are divided on themselves. It just looks unanimous that they are pointing in lots of different directions. And if you study the directions you dont have to be the legal maven to understand then you just have to speak plain engli english. They divide among themselves in ways to tell us a lot more about what is really going on and where the court is likely to go next. In the five justices appointed a republican president. People called him scalito. Nothing could be further from the truth. About free speech and privacy and about the need to stick to the original meaning of the various parts of the constitution. First it is in the world argument about the silent interactive video games to kids without the consent of their parents. It looked like alito was prodding the lawyers about handling and crippled. Thats pretty violent. The original constitution didnt treat violent speech differently and only tow losing patience told one of the lawyers i think what the justice wants to know is what James Madison thought about video games. Did he enjoy them and what if they were violent, what about the opinions involving the governments use of the gps to track somebodys car for a month without a warrant . In that case there was an even more fascinating back and forth between alito and scott leah. Scalia said there are in allergies and the 1790s to thithis and alito basically said yeah like what . And he said while a constable to hide in the coach for weeks to monitor the owners movement. And alito in his concurring opinion and this is one where all of the nine justices thought the following somebody with a gps for a month without a warrant was in principle. Alito wrote Something Like this might have occurred in 1791 but it would have required either a gigantic coach, a very tiny constable, or both. [laughter] not to mention the constable with incredible fortitude and patience. And that is just the tip of the iceberg. Over and over justices who come from the same weighing of the ideological spectrum have a different take on the constitution. They will sometimes agree on the bottom line that the disagreements tell you a lot about things like the pending case about cell phone privacy and about lots of other cases. Where if you just count the noses and do arrhythmic pics you are going to be completely misled. After exploring similar patterns and contradictions on the topics like equality, gun rights, states rights, the book which people across the country including ted olson that beats e and david boyd in bush v. Gore described the superbly evenhanded. When people across the spectrum sespectrumsay this is a fair trf the deeply divisive issues. After exploring those patterns and contradictions, the book shows that the court i court ise business of undertaking not only some scary but also some promising and innovative inquiries as to how the governments powers to coerce and to provide that offers short of coercion might be limited by the constitution in areas ranging from the obamacare individual purchase mandate and its medicaid mandates to the states to pleabargain criminal cases through the wall that conditions the federal subsidies on the recipien the recipients o save the governments to even when doing so means undermining the recipients integrity and its ability to pursue its social mission. Let me just say another word about that example in a decision that i think is overwhelmingly important but that got very little attention. Last year roberts writing for the court said that the government had no authority to tell nongovernmental organizations that were fighting hiv aids around the world that it could get the government money to supplement its private resources only if it promised to join the governments antiprostitution and sex trade campaign. Now a lot of these characters said if we did that w we would d could trust of the workers. Scott leah and thomas dissenting from the roberts opinion striking down that conditions had two bad. They could just say no. Turned on the money. And roberts says freedom to turn down the governments offe goves not always a sufficient answer and the offer uses a government leverage over the private resources to get people to sing the governments to. So the court is moving in lots of intriguing directions the book deals with. The book identifies powerful trends in various justices views of coercion and marginalization that connect connect important s of the decisions discussed in the book. Like, for example, the 5for ruling upholding the core of obamacare. This has beento rulings striking down the medicaid part of obamacare, the 5for ruling striking down one campaignfinance regulation after another. Those may not seem like they have a lot to do with each other but i show in the book that in fact they are born of similar views and they are subject to similar contradictions. And then there are decisions that of course i dont discuss in the book that were handed down since it was finished, like the decision in the town of greece versus galloway applauding the sectarian town meeting prayers, terror will decision in my view. Over for powerful dissent of which was probably that of elena kegan. Elena kegan. Elena kegan. That may be biased. She was a student of mine. But i see a few of my students in the room. So i have had a great time teaching. And that gives me a kind of look into the approaches that various people are likely to take. One of the things about the case that distressed me the most is that all nine justices including the supposedly girls went out of their way to say that the Supreme Court had been right 31 years ago when it upheld the legislative prayers in marsh versus chambers. Now, thats the beginning of the difficulty for the separation of church and state. So they were counting angels on the head of the pin when they should have said that he was rusty to begin with. Anyway, the more that i read from the book or give away insight in advance of the list that you will be tempted to read it your self. But let me just since this was advertised as a reading from the booklet may reabook with me rea, a couple of paragraphs from the chapter called freedom of speech. Sex lies and video games. An area by the way where almost all the press about the court is wrong. There are lots of people, distinguished people like floyd abrams who say it is the most speech protected court ever. There are people like the New York Times who say whats really going on is the justices vote for the speakers they agree with and not the other way around. I think the book shows both of those pigeons positions are obtainable. Let me begin and end with these paragraphs in the freedom of speech chapter and then take your questions. Throughout the late 1960s, the justices and the Supreme Court spend at least a day in the basement each day watching porn together. By all accounts it was fantastically awkward unable to define the obscenity that convinced the First Amendment couldnt possibly protect the unduly dangerous and morally corrupt discussion. They were forced to create constitutional law one scene at a time. The films ranged from scientific documentaries to the improbable escapades of info maniacs. The Justice Thurgood marshall civil rights hero to commercial exposure in narrating the clips for the special benefit of Justice John Marshall second and elegant wall street lawyer who was by then losing his eyesight, so he would basically say okay look whats happening now. Look what hes doing. Look what shes doing. Mocking the issue i know it when i see it i called out in the dark i see it. [laughter] in 1968 about 20 years after serving in the u. S. Navy a still youthful stuart reflected on the times and cant fight it in a particularly curious clerk. You might wonder who that is but i guess he had indeed seen it. I sent mr. Justice have you seen it and he said just once off the coast of algiers, and that is all that i was ever able to learn about what it was that he saw. Thats all they want to say about the book and i really welcome your questions. Thank you for your attention. [applause] you had your hand up. Please. Week sure you have the microphone. Is a tradition to say what the law is. That is john marshall. My question is about the case in jerusalem and citizenship. You quoted the case if the court decided that they have the right to intervene and it took the site of a congress that voted to enable the person to claim citizenship but then you dont get the outcomes. Because the case is pending. It was in the court twice just like the case of the woman who poisoned her best friend or tried to. She put all of this column count on the door knob doorknobs and r things but all she did was turn her best friends fingers red. The question is whether when she was prosecuted by the government for violating the law passed to enforce the chemical weapons treaty which is a little bit odd. This is a domestic dispute the question was whether she could challenge the wall on the ground that it violated states rights and oddly the Obama Administration said she has no standing even though shes threatened with imprisonment. The Supreme Court unanimously said that on. This is a case where she does have standing. And then the courts decided in round number two this year the congress had exceeded its authority or at least that we should interpret it not to apply this way. In the case that he mentioned there is this guy that wanted his place of birth on his passport to be designated. Congress had said he wanted to be designated a citizen whose capital he said it was jerusal jerusalem. That is apolitical and volatile issue. A political and volatile issue. The Clinton Administration was involved and barack obama and his Justice Department took the position that the court had no business resulting anything about this. It was a matter between congress and the president. If Congress Told the president and the state department wants to put on the passport, then let them fight it out. The Supreme Court in the first rounround said no its original o say what the law is and whether the congress was invading the Foreign Policy prerogatives. Its our job and therefore your attempt to keep it away from us is impermissible and now theyve heard arguments on a very difficult question on the one Hand Congress does have the power to impose constraints on the president just as it has tried to do with respect to the exchange of guantanamo prisoners saying you have to give a 30 day notice. The president enact case and in the case of israel and jerusalem said its none of your business how i conduct my job as the commander of chief. Sounds very much like george w. Bush. Its not your business how i conduct my job or instruct my secretary of state to conduct Foreign Policy whether it is Hillary Clinton or john kerry into the court isnt buying it and the question now would be how do you strike the balance between the congress authority to draw the limits in the president s authority to make the final call and i dont really have a prediction. What Court Opinion would you write in the case click one of the advantages, there are not many but one of the advantages to having been named to the Supreme Court is i dont have to do that. I dont have to decide i can be an academic and hope you both about what they think which is what the book is designed to do. Its not designed to preach either by liberal friends or my conservative adversaries. Its designed to talk to both sides and help them talk to one another. So if you think that i am ducking your right. [laughter] during the election the boston globe reported that the press was in different to the prospect of whom george w. Bush would nominate for the Supreme Court justice. Do you see this as an ongoing concern whether people are on the right or the left click i think its enormously important because the choice of ththe president to determine a t of things including the choice of justices. And even though a president cannot always get his or perhaps someday her way as we saw when Ronald Reagan nominated and soundly defeated. Nonetheless the president carries a huge weight as does the president but people are so much more concerned. Whom they can marry and a lot of things in the end the Supreme Court would have a lot to say about. And so far most people have put the impact this election on the back burner while on the list of issues. One of my indirect objectives in the buck is to gradually nudge people to pay a lot more attention to that. I dont do that is buying into the idea that its all politics. But i do try to show how the way the justices look at the world d makeover difference. Take for example racial issues and affirmative action. In that area the court is deeply divided. There are four justices who have a strong view that the country has pretty much gotten where it needs to go on issues of race so the chief justice says the way to stop the race discrimination is to stop discriminating on the basis of race. Lets not Pay Attention to the race and the problem will take care of itself. There are four other justices who think that is profoundly misguided and who think that any nation that as deeply problematic of a racial history as ours cannot simply put its head in the sand and hope the problem will sweep itself away. Justice kennedy is sorjustice kn the middle on that issue and hes often criticized for being indecisive but i think in fact cc but there is something to be said for each point of view and in particular i know that given the demographics not many people in this room are fans of Clarence Thomas to the fact is that the deep debate between Clarence Thomas and Sonya Sotomayor is incredibly informative and they both recognize that they have been the beneficiaries of race sensitive decisionmaking by universities and some extent government. They come out very differently as to what they think about that. Thomas says its made me feel inferior role of my life. Everywhere i go, people said he is an affirmative action baby. He is there only because he is black. I feel excluded. Sotomayor says i understand that, but i feel very differently. I know that i wouldnt be where i am today but for the benefits of affirmative action and i dont want anyone else to be denied that opportunity. It doesnt undermine my euro impact. Now, when you look at you can say what does that personal experience have to do with the constitution. Written in part on the National Archives but it has everything to do with it. What does it mean to deny equal protection of the law . That is a concept you cannot define it algorithmic or mathematics through a robotic computer sort of program. You have to give it meaning and the only way to give meaning is in terms of life and some justices are better than others at being open and candid about what it is in their own experience that brings them to the place where they are. I tend to appreciate the candor and i think the people of the United States are smart enough not to be acquainted with the idea that these judges are not really being judicious. Yes, back there. You mentioned the quality and the difference of the opinion where we would think that justice would go one way and liberal would go the other. The decision has been of Citizens United. And i wonder to me thats where the people voted for it. And i wonder if there are other cases. Essentially every congressional efforts but now comes before it to mention the wealth and Corporate Power but also of unions on the elections and whether that set of decisions which do tend to split in partisan ways, whether that somehow a reputation of my view that these people are trying their best to give them their beliefs about their constitution i dont really think so. I cant agree or disagree about Citizens United but the fundamental philosophy of the majority of the cases is not contrary to what lots of people seem to think that corporations are just human beings in drag or not money is speech. They are not saying that. They are saying that we dont trust the government to decide what speakers should be heard and how much money the various interest should spend on speech. As it happened, Citizens United was an antiHillary Clinton documentary but if it had been an antiromney documentary or antimccain documentary, that suspicion of government playing the role of orchestrating the Playing Field for speech would have been exactly the same. Another way to look at it is that however much we may worry and i do a great deal about the injury to the Representative Democracy of having great wealth play such a huge role we may be less than confident the solution to the problem is to take the very people that we believe were paid and about four sort of paid and both were paid dot get paid for, sorry, in positions of power and hand them a blank check and say here you write the theme for the campaignfinance reform. And by the way, dont gimmick it so that it will reassure the election doesnt favor incumbents, something that the court isnt very well able to put these. Giving that power to the very people that we are afraid or influenced by money. By reversing the Supreme Courts understanding of the First Amendment doesnt look like much of a solution to me. So thats one of the most serious paradoxes that confront us. The speech and money and power. Yes . Was the constitutional amendment of the only way to reform the campaignfinance . I tried to help at hi adam aa few members of the house and the senate. Hes a democratic congressman from california who was once a student of mine and who drafted an amendment on the premise that the amendment would be a good idea. I tried to help write it in the best way possible that what i ended up with is something that i myself could particularly support because all it would do is give these guys who frankly got there as a result of the financial influence as well as everything else. The power to write their own ticket for the election and the amendments people have proposed many of them are just to be candid or ridiculous saying the corporations are not people. Thats one of them. What good would that do. It doesnt protect only certain speakers. It protects speech and listeners so that it etd were suddenly to walk into the harvard bookstore, and if e. T. Started speaking and the cambridge said we dont want him tthem to vote didnt have at of influence we are going to prevent e. T. From spending money circulating their views. That would violate the First Amendment and say he isnt a person wouldnt help. For the constitutional amendment i dont want to leave people with a despairing feeling. And on the Citizens United i dont know how to work my way out of that. I think if you read the treatment he would say at least i understand a little more where they were coming from. It doesnt seem so crazy and some of the Simple Solutions dont seem so workable. And just knowledge is power. Being able to understand why you shouldnt let people pull her rule over your eyes should make you feel a bit better. I am an academic and to some extent i that is a strange bree. To uphold individual purchase mandate on the result of the taxing power. He thinks the taxes are not as coercive. Raising your taxes not to the degree. There is no way that roberts would vote that way especially on the basis of the taxing power to. They make the decision striking down the congresss rule that the states that dont accept the broad Medicaid Program which is almost entirely paid for by the federal government. That was quite a departure from the liberal colleagues with those like sotomayor. I was a little surprised. We can go a long with him on this and it wont make much difference. Because they mistakenly belief that essentially every state would go along. They didnt realize how many states would say no, ideologically based no hurting your own people severely and undermining how workable obamacare would be. I think they also got some benefits in the way they voted and that is they prevented robert from going further still in that you cant use money to influence federal money to influence state decisions. That would have been an even more radical position. And it was possible. But by offering to join him on the basis that this was like a gun to the head of every state because it would hurt him so much to pay the penalty of getting. They enabled him to get something. Something. You answer something that was on my mind as you talk to. They strike down the medicaid mandate. He didnt need the other two. Its always nice to be the author of a 7to decision but i dont think he needed those votes. If he needed them that would be more plausible in which they seem to not only about the bottom line in this case, but they carthatthey care about the. They note that they are laying down a president. The court is the only branch of the National Government that has an obligation not imposed by the constitution but by the tradition of writing opinions in which each justice either by saying something or joining an opinion or a dissent explains what he or she is reasoning that leads them to that conclusion. No other branch does that. The president can take action or not and its up to him how much to say to the people. And because they have to rationalize their opinions and then live with them for all these years that people like alito and roberts are still young and elena kegan is younger still. They dont want to lay down a landmine that wouldve been go under their feet. It wasnt a longterm solution. Right no now they paralyze congs it might be the best thing that is available. Its not quite a matter of enforcing federal law is prioritizing the improvement over others. Supporting people that have serious criminal records rather than people who have been here and who have abided by the rules and the law too came here innocently when there were children who were brought here by their parents and deciding not to report them until you get to the end of the line and that is going to be decades away. I think it was in the president s prerogative. It was in a totally brutal exercise of mechanical power. I know thats not long ago the Justice Kennedy had the decision striking down doma and the decision was eager than it could have been. Is there anything interesting we should note about . One of the things in the defense of marriage act said that even if you are a married couple in a state that allows samesex couples to marry the federal government, which usually defers to state definitions of family relationships will treat you as unmarried and you will lose tax benefits, Social Security benefits, about a thousand Different Things you lose. It was quite clear that the four justices, those nominated by democrats would regard as law anascompletely inconsistent wite principles. They were not particularly enamored of states rights. The fact that the federal government was interfering with state prerogatives and an indirect way wouldnt bother them very much an impact it would have been rather troubled to join an opinion but rested entirely. To define whether samesex couples can marry or not would come to the ultimate challenge when some states they want to ban samesex marriage here dot federal government might be powerless to intervene. What is unclear is where kennedy would go in on the ground. One possibility since kennedy is a strong advocate of the states rights is that he would invalidate doma solely on the basis that the fed has no business telling the states the people that they think are legitimately married or not for federal purposes. That would be the federalism decision. But what i think you are referring to is that he went further than that. He said that once the federal once the states would say the state of massachusetts has said that bill and john are legally married or that means he and linda are legally married for the federal government to say anything other than that is to insult the dignity. There is no possible rationale for that. Other than to say that they are secondclass citizens and that their union doesnt count as much as that of other people. That is what kennedy said. He used federal and state relations as a hook but then he swung across the stage and made everything turn on liberty and equality and dignity which is why every lower court case seems that the decision in windsor regardless of any federal state element when a state decides to people cannot marry even though they are otherwise eligible and even though they love each other and want for a permanent relationship just because they are of the same sex. Every lower court has now said we cannot rationalize. We can understand the opinion if we dont go all the way here. And in fact, sylvia did everybody a favor in the dramatic dissent saying now that you have said that you are bound to take the next step and that will come back to bite him. Which would it be . Before i answer that question i want to tell you that when i wrote a treatise i had a publisher that send me the final and he said if you have any changes in the constitution that you would like to make this is the time to make them. I think what he meant is if you have any corrections in your text this is the time to make them. I think the Second Amendment, though it isnt something i am a great fan because i myself am not a believer in the importance of guns as a way of protecting safety. I think that they endanger people more than they protect them. The Second Amendment isnt among my favorites but there it is in the constitution. It didnt shock me that the court gave its more muscle and if we were to get rid of it as the Justice Stevens proposes thaJustice Stevens proposesthatf a sudden we would have universal registration and all kinds of safety requirements you would have severe restrictions on gun ownership, that is a fantasy. The thing that prevents powerful restrictions on gun ownership in this country is not the Second Amendment, the the first. The ability of the National Rifle association and others to exert powerful influence. This is a voting issue when they are on the pro gun side but not when they are on the gun safety side so getting rid of the Second Amendment would have very little positive effect in terms of those who favor stronger efforts to secure gun safety and reduce the carnage. We have some stuff that we want to do first and maybe fourth and fifth sixth. One of the reasons that it is dangerous to tinker with the bill of rights to get rid of Citizens United by changing the understanding of the First Amendment is that once you start its hard to know where youre going to stop its like spelling mississippi. I sort of know how to spell it but i dont know how far to go and how long to go on. [laughter] yes . I just want to ask this questi question. That is a constitution [inaudible] around the question of the visibility of the vampires and you see the court and argue about the political [inaudible] so from the outsider of the democratic nations the supreme e court as the empire, to use your earlier analogy with some questioning the umpire is quite visible in america. And i wonder if that may have arisen at the time the constitution was written that it was such a radical experiment going into the democracy that in the process of developing the whole constitutional structure there was a fear about giving too much power to the people and their representative and i think that there was a concern in the early stage to have the kind of overseer of the patricians who could control the unruliness of the masses if you like and i wonder whether they reflected the same concern and have much more power as a kind of patrician elite to control the people and representatives and therefore undermining all of this is a basic mistrust of the people. I think the constitution as a whole manifests lots of distrust the people. Distrust of the masses that they would somehow cancel all of their debt and injured the stability of the Financial System and people like Alexander Hamilton were deeply concerned about that. The Marshall Court though many people regard what he did in 1803 and 18 of life and the like is quite radical. But really they moved rather cautiously. That is even though it invalidated one narrow provision of the judiciary act of 1789, the next time the court invalidated any part of the act of congress was 1857 and the rather infamous case of dred scott v. Sandford. So the court was keeping over the political branches. Getting them to have their own for seriously by threatening that if they didnt, they might come down upon them. But it wasnt really exercising that power with the kind of frequency or the vigor that it t has in the years since independence appear period they went quite wide of striking down the economic regulation there was a constitutional revolution at this point but because of the Court Packing but because of the deaths. A lot of the old members of the court died and fdr had a chance to place them. We got a court was much more deferential to politics except for certain areas where there has been since the 1940s a trace of distrust of the majorities. They wouldnt treat the fundamental rights seriously. What we have done in the end to strike a balance in which there is some areas the court is more active and others less and it would be sort of a long process to engage in the full debate ovea full debate overwhether the balance right. The Current Court is moving again rather frighteningly to some people in the direction of reviewing laws that affect the economy in a serious way. For example, the laws that were passed in vermont to make it harder for pharmaceutical companies to jack up the drugs by getting information about drugs to certain doctors that they would prescribe more costly drugs. The court struck down on the basis of the First Amendment. Sotomayor joined the conservatives on that and Justice Breyer went almost pointed. He said this is the return of what was called the lochner era the period from the 1890s and 1937 when the court was striking down economics regulations rather loosely. Because if you strike down in ad economic regulation simply because it deals with speech in one way or another and it deals with information in our society is at the heart of almost everything. And using the First Amendment in that way could give the court the kind of cover that is presupposed in your question. Some people think that is exactly right. The fear in our economic lives is incompatible with the premise of liberty and other people think that meaningful liberty requires the government interference. They might rather dangerously in the direction that in 1937 we abandoned. It is crucial and critical. What is your view of some of the Supreme Court justices that have changed the wording of some of their opinions after their opinions are issued, you being an academic anacademic and im u study every opinion to see i found some doozies. It does bother me that what happens is and it isnt just part of the current news cycles but theres been a lot of demand from decades ago to know exactly what the court decided the very moment that they decided it was a Printing Office of the court as it used to be idled for. And now they may have something more fancy to the Printing Office used to come out with what were called slipped opinions in minutes of the decision. And because they were produced so quickly, there often was a slip in the slip opinion. The justices to the latest draft had existed and i know that when visiting court in 1992 reaffirmed the core of roe v. Wade in the case called planned parenthood of pennsylvania against casey. If you carefully read the dissent you can tell from the first opinion that it was a majority opinion. It was going to b is going to by opinion overruling roe v. Wade. But that was patched up when kennedy and oconnor as a group decided that it was important for the stability of the society and for equal status of women. It turns out to colleagues teaching the constitutional law in the country knows that. I thought everyone knew it. But people study this decision as though it were sort of ordained that the court wouldnt get rid of roe v. Wade. But it came within inches of doing exactly that. That is rather difficult. There would be much more journalistic integrity about the way about not making changes sort of sub rosa. I think if the court is going to make a change that actually changes the meaning of what initially was announced it should have an obligation to make that clear with some sort of supplement. Yes . That would be the last question. Thank you, professor, for the buck and the presentation. For the freedom of speech interpretations of the court when they uphold the Citizens United iab leave that up to criticism about the individual judges has a more profound question, and that is as the american democracy is turning into a plutocracy and as the court is thecourt a reflection d of change . Something that is a cause and others think it is a reflection. I think that it is more complicated ultimately then thats because the reason the court ruled as it does in Citizens United is not a belief that Corporate Power and wealth should dominate our society, but the belief that the government cannot be trusted to decide whos voices should carry the weight. Its an antigovernment decision much more than a Pro Corporation or plutocratic decision. It is in that way somewhere in between anarchy and libertarianism. It is a mistrust of government. In and as some of the justices pointed out in Citizens United is the momandpop corporation the subchapter s not said giant publicly traded corporation that benefits from decisions like Citizens United so it is more interesting and complicated them plutocracy. Think you for your questions [applause]buo we will do a book signing right here. [inaudible conversations] if