>> i actually, when people ask me what i am somewhat optimistic, this is one of the reasons. the energy transformation is a north american phenomenon and the potential for economic growth. take a step back. it is one of the great advantages and one of the endowments of united states. and the fact on our borders we have good relations with canada and mexico and mexico's reality is farther diverse than the very real problem of drugs but you have leadership in place that is politically and economically reforming reforming, rotations of power and mexico is a success. the potential for north america as this is more tightly woven together, it will be but the question of how much and the potential to be good for the civilian americans but also for the world this could be one of the great stories of the 21st century and it really is deserving of considerable high-level attention. why am i optimistic? severalfold. one is technologies we are four years ago we would not have seen what happened in energy with shale and oil so it shows the capacity of innovation. with still has the world's best universities, we have land, water, a stable political system, the most open country, even without immigration reform that by far the most open country in the world and with comprehensive immigration reform we do ourselves a favor. a surprising number of successful businesses have their roots for people in this country and with some fairly modest changes i do think we could get economic growth back to where we should be of 3%. we have a very balanced demography with enormous numbers of old people and a better proportionality. it is another reason is the decline is wrong. we have enormous potential so the real question is if politics will get out of the way but i somehow think in part because it is discouraging to think of the alternative. [laughter] but the and australia and former? they are one budget deal way to be a great power again? something to that effect. there is something to that. a budget deal to get economic growth of 3%. and some of what i am suggesting is more engraved and i think there is a positive reaction on the foreign policy front. i think there has been that it can go too far but it is to halsey for what we did in iraq and afghanistan and i think it is healthy with a greater emphasis of asia and the recognition of north america of that i think is healthy. i see correctives in the area of foreign policy and strength and great potential domestically and i have been given that it is hard not to. but it is not inevitable to get it right to. to put up the argument. i work in the idea business and i believe ideas matter and i am hoping by putting out ideas like this it can help influence or contribute to the debate about where we're going and how we get there and if people are sympathetic to what we should do should not be doing, there is no reason optimism doesn't become reality. >> thank you very much. i am really happy you wrote this book because there are a lot of books that are interesting and richard will be signing the book after this session but there are also those that are constructive and i think it pushes us to the debate we need as a country and whenever i have agreed with richard over the years it always means he gets into some kind of trouble. [laughter] i hope the only means they read the book and think about it. it is about restoring internal sources of power and balance to what the united states aims to do in the world and how it does it. sounds like common sense to me. thank you richard. [applause] [inaudible conversations] >> this feels like home not only to be here again been having a chance to chat with marcia coyle be overlapped 20 years in the supreme court pressroom. >> we are old. [laughter] >> we discussed things of interest and substance that i hope we will do tonight. uc her book "the roberts court" the struggle for the constitution" and may be able start by asking if you could talk about the subtitle the struggle for the constitution" it is not in whose constitution is that but who understands the real meaning of the constitution? right? and due for a net for those who have not had a chance to look at the book, she made an interesting choice to frame her story of the roberts court through the lens of major roberts court cases. guns, rape, many, and health care. it doesn't get much more fundamental than that and you can see the struggles for the constitutional application of those subjects and you can elaborate on that. >> guest: the struggle is within the court over the meaning and the scope of certain provisions in the constitution, but it is also a struggle outside the court as i tell the back story of the court cases that i picked to draw the readers' survey of seven years of the roberts court. this is a story about the roberts court in general and specifically about these four cases. and it is also a struggle within the country. you see it playing out almost every day over the meaning of certain provisions of the constitution but i would like to tell you about why i chose the four cases that i did. they cover four areas race race, guns, money and elections and health care. initially was looking to do something that i thought the supreme court to books don't do that either focus on the nomination confirmation process or what is happening or happened in the supreme court itself but i really wanted to tell stories of how cases get to the supreme court italy and at the courthouse door fully grown it takes a lot of commitment with people involved and a lot of strategizing by the lawyers it is a long haul to the lower courts although some king get there quickly depending on what happened in the lower courts spinning people may not realize it takes wondered 2% of those cases. >> that is amazing when you consider they get on average 8,000 petitions from those who want the court to review their case but as i looked for the four cases i wanted the 54 decision not to show that the court is always divided. it is not you will find out in the book more than 50 percent of the decisions that issued by the supreme court are either unanimous, 8-1 or 7-2. there is consensus even know ideologically divided but the 5-4 decision is where relearn the most about the individual justices and how they use certain provisions in the constitution as well as how they approach their job. i also wanted obviously what i would call signature decisions of the roberts court under john roberts, jr.. then obviously i wanted a good back story but one seattle mother who called herself a mama bear before sarah palin point* the term and and to get her daughter into the high school in seattle and when she found favor using race as one of the number of tiebreakers tiebreakers, she filed a lawsuit to challenge it going all the way to the supreme court. i also found along the way and i did not start with this in mind that these four cases had nothing else in common, they had very smart conservative or libertarian lawyers behind them and in some cases agenda cases. issues the lawyers or organizations backing them wanted to get to the supreme court for a final decision and had their eye on the increasingly conservative or sympathetic supreme court that is why i chose those cases to be a book that is a good read not heavily legal legal, that is not what i wanted to right. >> host: john roberts has been chief justice seven years and william rehnquist was chief 17 years? we are early in what we anticipate to be a tenure of 25 years' use the it youngest chief justice ever name since the great john marshall at age 50. did you ever have be thought this was too soon to judge or offer it take? >> guest: i did and i point* out in the book and i tried to make it clear i do consider this a young court and now that i did wonder about that. how the book came about is i was covering the alani taken confirmation hearing in the summer when i received to extraordinary e-mail's. one was from an editor at simon & schuster who was very interested the other a very faithful pbs van who asked me to marry them. [laughter] >> host: and marcia is already taken. >> guest: i did not show it to my husband it was a beautifully written proposal and mike has been proposed to me in a parking lot in downtown baltimore. [laughter] but there was no nothing with that proposal but she convinced me that it was a good time to look at the supreme court because even though it was young and this was a five years into the tenure as chief it had shown a willingness to really take on controversial issues. and part of the reason i picked the four cases i did was because i wanted issues i thought based on the five years would have some shelf life and we have. this term in particular there are two cases involving race, and the next turn there is a big campaign finance case brought by the same lawyer who brought citizens united to the supreme court. i am sure we will see another health care challenge not the kind we saw last term that there are a number of lawsuits in the country moving quickly raising religious questions about the new health care law. and guns. there is litigation trying to fill up the meaning of what the court did in the district of columbia dunlop. so she made a good case let's take a look at the young court with new members and see what is going on. that is why i decided to give it a shot. but i do make the point* it is early. we have talked about what that means in terms of john roberts himself. >> host: it is a backtrack of these four cases parents involved coming integration integration, citizens united needs an introduction and the health care case, you say they all come to the court supported by activist players from the right and to ask the supreme court to take these issues up for a decision is there a roberts project? is there the agenda with the constitution and, in your view? >> guest: he has some certain definite views of certain areas of the law. as i explained in the book with seattle and louisville kentucky those involving race, i think he has a clear picture in mind as to how he views the use of race and racial classification and he signals that in his very first case of redistricting when he did not join with justice kennedy to find a certain district had been redrawn to discriminate against hispanic voters but he had a famous line, it is a sordid business. i thought that is the flag as to what is coming then he surprised us a little bit in 2009 when he took up voting rights case. everyone thought section five of the voting rights act which is a key provision required certain jurisdictions with a history of voting discrimination in to get any changes in their voting policies cleared by either the justice department or a federal court in washington d.c., he wrote an opinion in that case that the court did not strike down section five buddies shot an arrow across the bows of congress there is a real problem here you have used old data and the country has changed and now we will see what happens with the voting rights act again with this term the would not be surprised if he writes that case. so race is one area he has a clear idea that the agenda is something that somebody is looking for particular cases. i think race is a concern and the first amendment and he thinks the court is developing a coherent view of free speech especially what we don't particularly like but should be protected entirely different from campaign finance. i don't know if he has an agenda but he has strong feelings about certain areas of the law. one justice told me he thought william brennan was the most influential justices of the 20th century because he did look for cases that came up his pipeline at the supreme court then when did do take them because he had a definite you into case law. >> host: at that time he thought he could wind. that was the famous line he told of his clerks it was all about counting. [laughter] so talk about reporting this book out you talk to the justice? and you are a working journalist so there are some interesting issues. >> i am very worried rabil mentioned that he holds every spring for reporters and how will he look if he knows anything about the book? [laughter] but i requested interviews with the justices and i was surprised at the amount of access that i did get and i hope i got the hot because i have always tried really hard that if i don't succeed on the news hour and my work with the national law journal to play the court straight to try to give everyone enough information to make their own decision whether you think the court did the right thing. i think they view me as their but they're very nervous about talking to the press. it surprised me how many don't understand the ground rules. one said i will talk to you but it is all off the record [laughter] and i said i am an old fashioned journalist and that means i can use anything you say to me unless i can find another party to say the same thing or confirmed it. what about background? they said what is the difference? i said that means that i can use it but i don't say that you said it and that i mean you. they said that is fine. you would think after all the years they have been on the court and having interviews with the press that they would understand the ground rules. some of them would only talk of the record but were gracious enough to let me come back and go over things i would like to put on the record or on background. justice scalia was one of the brave ones to allow me to put portions of the interview on the record can and so did another justice. its is tricky in the first time i ever spent a lot of time with them. i was fortunate to get one hour or more and when i think back i wish there other things i had asked that i didn't. i don't see it as a conflict by doing the book because i tried to do what they do every day in my job which is to present the court as fairly as i can't to let you decide for yourself if the court made the right choices that it has. i quote in my introduction justice souter who has retired, he spoke in a public conversation in new hampshire historical society and talked about how the court does its job and how do you know, with the court to how does the average person know? you have to read the decisions and is that too much to ask? becky is right you have to get as much information as possible to see if they made the right choice because the constitution doesn't always give clear answers every question. >> host: back to you john roberts is he the leader? look at the health care case and of course, he did right controlling opinions much of which only for himself of course, they joined him of the holding back the penalty of the mandate they were right and only to abandon him but distance him pretty openly so he is chief justice in name of course, . >> guest: i am not even richer justice rehnquist was the chief justice in fact, it is interesting. they all say no one is a leader of the court. there is no leader of the block. another justice said there is no leader but there is also not nine stovepipes they say what you have to do is go into the conference meetings after they hear a case and a listen really hard to what is being said each justice then you have to find what he thinks the vote will be in the one that has to go one way or the other. they even disputed we even called the court because of justice john paul stevens success to get more liberal victories in the face of a conservative majority and they said no, he was not the leader of the liberal block he was the kind of justice he did not believe to go to convince or persuade the did everything through his writing and he felt strongly nation make up his or her own mind. but when you have nine truly independent minded judges how the chief justice really leaves the court except perhaps in some very special circumstances as we saw warren did and i don't know. it maybe too soon to see how strong the justice he would be. >> host: he came in with the unusual circumstance. people remember when justice o'connor shock to ready by retiring been chief justice rehnquist died within eight weeks and there was no change in the court over 11 years. so the seven of them having been together and john roberts the new kids on the block of course, then you become first in seniority although the most junior. >> he was only on the lower appellate court to your -- two years. >> no madeleine the chief justice -- not only the chief justice but head of the judicial branch with all kinds of internal politics, a budgetary matters and stuff. you have a sense you have the job of being chief justice. >> guest: day administrative part is very important. also with the judges who serve on the foreign intelligence surveillance court dealing with sensitive matters concerning national security. head of the judicial branch and tries very hard to be sure that the judges are paid the way they should be. that has been a failure. >> it has. >> it is not really his fault trying to get anything through congress is very difficult. i remember the chief justice rehnquist said that when you are the chief justice within the court you are the first among equals. and you probably remember we used to have lunch with chief justice rehnquist and not the complete but there are so many who are writing separate opinions and can't you do anything about this? have the court speak with one voice and he just laughed he may even use the phrase like herding cats. i have not heard any complaints about his job on the administrative side i am not so sure that he really enjoys, but we have to wait and see what kind of cheese -- chief justice you will be. >> host: we have the phenomenon of justice o'connor a couple weeks ago expressing some degree of regret. do you feel any members of the majority who ruled in your cases with psittacine united comes to mind who have watched what has unfolded and how they have second thoughts? i am asks that all the time. >> in terms of the five justices who voted for the citizens united decisions, no i don't think they have regrets. the ones i spoke to felt this was an obvious way to go. it was just last term the court had a petition involving the state of montana with a 100 year old law that banned corporate spending in the elections. the montana supreme court basically thumbed their nose at the u.s. supreme court that said citizens united does not apply to our situation. this lot is 100 years old we have a history that shows how corporations have voted the montana government and we don't want to go back. it was challenged again by the lawyer who brought citizens united to the supreme court and when it got there, the five justices said sari, citizens united applies even though two new justices had written separately that they think it would be good to take a look at the montana law of the premise that citizens united was based is we need to take a look at what is happening in the country what is happening with the elections but the court did not even have a signed decision and said we will not hear it and it applies. period. >> update overturned it they'll return the montana supreme court ruling. i call this a very confident , sometimes pulled conservative majority and i think citizens united is a good example there is no regrets. i am not sure about what might happen if guns come up again by would be very surprised if they backtrack on the district of columbia done decision. they probably won't on the individual right but i think it will be interesting to see what they say on questions that are coming about gun regulation and what kind of scrutiny the court should give to get regulations. >> host. >> not many regrets yet. >> host: was surprised you the most? i have interesting tidbits. >> guest: tell me what they are. [laughter] >> host: take citizens united, the case was argued we know, it seemed to be all that significant and it was on nobody's list as one of the major cases. what happened? >> that was interesting the consensus was during the first argument of citizens united said deputy solicitor general being questioned by the chief justice was pressing him on how far his argument would go in terms of the regulation of corporate spending. he made a concession the government could ban books that were funded by corporations. he didn't mean they would ban books but that you could regulate the many used to publish the books but it was one of those of paul moments as justice toledo said that is extraordinary and astounding and then we get the announcement that the announcement they will be here citizens united and it will consider it specifically with the court's own question whether it should overrule the 1992 decision that did ban the use of corporate union funds in the federal election. and also a provision with a fine gold lot that upheld with the use of those funds for certain periods during the campaign everybody assumed it was because they said government can ban books but that really wasn't the story if you believe the individual justices, they all said no, that isn't why. but behind-the-scenes maneuvering was that initially after the first argument the chief justice would right of fairly narrow decision that was highly critical of critical whether so lot even applied and they insisted that it didn't and that would be that but. >> host: that would not mean very much. >> guest: but justice kennedy and then makes a very clear with the corporate expenditures was wrong. and he said that in several decisions after words and it was a defining moment for them and justice kennedy wrote a concurring opinion that was much broader than what the chief justice would right and suddenly the majority swung to justice kennedy and the chief justice had to decide what would he do? because in in 2007 with another case to buy citizens united to the supreme court court, had a firm to the 1992 decision and the provision of the mccain-feingold with justice kennedy. exactly. he ultimately wrote a concurring opinion focused solely on the concept of star a decisive us standing up with prior decisions and why he should not stand up by that but what was going on at the same time was justice souter who had been assigned the dissent by justice stevens he wrote a blistering dissent about the fact said court would really is an opinion before the second argument and rule on issues that were not before the court the citizens united organization abandoned a challenge to the lower courts there was no briefing before the u.s. supreme court and he basically said this is not the way we do things around here and it will be in my defense that is not the way we should be doing things that is ultimately why i was told by several former clerks and justices that there is what they call the institutional button with the court is about to do something that might look very bad for the court in terms of the institutional reputation, that the justices will stop to take a second look and justice souter press to this very hard and he did with the chief justice and that is why. now the justices said to me, they don't remember if they took a vote on the argument of citizens united north if it was a consensus but it should re-read argue that is why they said they be argued in order to give the lawyers in the case more time and opportunity to reach the two questions the court presented it was a little in.-- ingenuous of justice kennedy with the decision when he opened by saying something to the effect of the case raised these issues and yet as was pointed out of the court raised the issues, not the case not the lawyers initially anyway. that is how it came about and justice stevens ended up writing the descent because justice souter retire from the bench. >> host: they didn't have him to kick around. you can see that to standing microphones if you have questions you can start to line up. >> guest: there is a lot in the book how the justices do their job and what it means to have four new justices coming in in just five years and how that affects them and in some cases the jurisprudence all the alliances are suddenly gone and before you could depend on certain justices to vote to certain way and now suddenly that is no longer true another talks about how being on the court is like being in a marriage if you were there for a long time you have to learn what things tick off another justice and when to go to zaph and when not to with interpersonal relationships. some like a close personal relationship and others preferred distance so it is interesting how the changeover has affected them >> host: i remember justice stevens lovely in them more he says he thinks the most important thing that happens during the rehnquist court was the retirement of thurgood marshall and his replacement and they thank you could argue the most important during the robert cort was justice o'connor's retirement with her replacement by justice toledo. >> absolutely you cannot underestimate that. they were both conservatives but very different kinds. justice toledo -- toledo much more conservative than justice o'connor. he tipped the balance and he tipped the balance with abortion, his very first term and also tipped the balance with campaign finance. >> host: also on race. >> guest: now is just going to say this would be very interesting because one of justice o'connor's key decision on affirmative action is very much in play with the case out of the university of texas that the court will decide before june so he has been an important change and to be the swing vote in when she laughed and justice of the cocaine justice kennedy moved into the swing vote can -- category. not as much as o'connor was willing to do so that was solidified with the conservative majority on the court. >> host: it is time to start with questions such. >> the supreme court justices but a lot of energy into the dissenting opinion does that bear fruit in a positive way? >> guest: absolutely i think justice ginsburg said then they right for the future and perhaps the best example of that is the chief justice rehnquist was known as the lone ranger in his early years on the court because he wrote defense and often for himself but once the court began to shift to the right he started to see of what he believed in become majority opinion. yes, i will tell you a funny story. years ago i was having a christmas lunch in d.c. and justice scalia was having lunch at a nearby table and we thought it would be nice, why don't we send over , an italian restaurant obviously, and after dinner drink with the spirit of christmas. he did not accept it but he came over to explain and said he would have accepted it if he was writing a majority opinion but he had to go back and right of dissent and he needed a clear mind for that. [laughter] >> what do you think will happen when about one dozen people accounted for 80 percent of the super pac money where will the country go if we continue on the route that is the conservative majority will continue on the route so you will have a handful of people controlling the vast majority of money that is spent on political elections >> guest:. [laughter] i think that his ratings are headed obviously but i think the supreme court would say go to your congressman. there are attempts being made, not successfully, to change the federal election laws in order to provide more public disclosure of who is behind the funding of the campaign but they cannot even get back to congress. >> host: it is not clear those laws would be upheld. >> host. >> guest: exactly all the with citizens united there were eight justices to did endorse the current disclosure requirements on a justice thomas dissented in that decision. it doesn't look hopeful but i think congress is the avenue to address it. unless the court changes, i don't see them backtracking on what they have done. definitely a key regulation trend in the supreme court. >> but really obama or anyone else could not get through nominations for the regular court no less the supreme court. >> guest: presidential elections due matter. >> my question deals with the roberts vote with the health care issue. do you think he was motivated that the court began to look like a political entity rather than jurisprudence entity? >> guest: this is one of the most common questions we get. >> host: no. i take him at his word. sincerely trying to grapple with the issues and i think he was first inclined to vote with the conservatives to strike a lot down to violate the commerce clause but when they came back and said that means the entire log goes, not just the mandate and not just the provisions of the law that are economically tied to the mandate like guaranteed issue to take down the entire statute, i think, i have not been able to do any reporting that my supposition is it was too much for him. he is more of a minimalist than the people to his right and more of an institutional list and i feel he must have said to himself there has to be another way out of the mess and the tax question had been presented and argued both by the solicitor general and others who filed briefs and that was there for him to rely on. i don't think it was a cynical or strategic move in fact, it was a desperate move to extract something from what would have been much too hard for him. >> guest: i agree wholeheartedly. i think the media did focus on the commerce clause issue in the case to the exclusion of the tax issue and it was always in the case. when the case got to the supreme court the solicitor general beefed up the argument, and there is this doctrine that if a court can't find a way to interpret a lot in the constitutional fashion forces the and constitutional weight or to strike it down then it should take the path to uphold it and i think he found the tax power was the right path. >> host: for people who are interested in the health care case the book that came out this week is called the health care case and it consists of 20 essays and different aspects i wrote one of them but it is a nice little book. >> guest: it is a fascinating case. there is so much going on outside the court talk about special interest, so many organizations, law professors, others who wanted the court to go one way or the other were riding constantly their speeches on the floor of the congress, i cannot remember a time when there was such a strong effort to get the justices recuse from a case as we saw with the efforts against justice thomas and justice taken so it is a fascinating case and worth reading >> and my chapter in the book. [laughter] >> it is a city to come all this way. of would like both of you to comment in some substance about what justice o'connor has said her participation against bush against gore was not a slip of mind she turned the oral argument and ridiculed the voters who could not understand the ballot and heavily engaged in the case. what is your view of what you think now that she has made the comment? >> guest: first of all, it is not unusual for some justices to have regrets or second thoughts about decisions they have made. i think with justice o'connor, she had seen a good part of her legacy endangered by the fallout of the bush be gore case and the more conservative justices that succeeded her on the bench identify can say anything more. she did not elaborate all lot so i will leave it at that. >> if you parse out what she says she says maybe we shouldn't have taken the case. which bakes the question then what do you do with the case? it wasn't a full recantation after justice powell who was the deciding vote in 1987 rejecting the gay-rights claim in that case and after he left the bench he said he felt he voted the wrong way. she did not say that. i don't want to attribute to her a global regret that she does not seem to feel. >> this is a question that i share ignorance. i left law school 50 years ago and i guess i can reveal the law school by saying another first-year law student was justice scalia. i am curious about the rationale and the history when you talk about the roberts corporation yet he is the newest justice, what the history and rationale of having the newest chief justice when in the academic university head of the english department is someone who has seniority in congress has seniority the implication being they have been there longer so therefore they know more. when you talk about the roberts corporation yet he became that so is it the roberts court and what is the history and rationale if not the first chief justice as first day on the job? that is something that has perplexed me. >> guest: that is the rule. there has been nephew's sitting associate justices william rehnquist was promoted but typically they have been just plucked out of a hat and all of a sudden you are chief justice. that was up pattern that george washington established by naming it john j. as the first chief justice of the united states but the constitution and article three does not say that it just says there should be one supreme court and the judicial article does not even mention the chief justice or describe any functions we only learned there is a post because elsewhere in the constitution it says that chief justice shout preside over the senate trial of impeachment so it could have been otherwise. there were some -- six justices he could have named six and rotated, whenever. but being what it is from the very beginning got locked into that. with the federal courts of appeal the chief judge is the senior among those who have not yet reached the age of 65. >> i suggest that the office of the role is not as important then why could we not develop a system where the chief justice is in fact, the senior justice? been right there would be nothing unconstitutional about that if you are in the original list. or if you go by the intent of the framers obviously they seem to assume that somebody would be nominated and confirmed to a position of chief justice to hold that position for life. that is the original understanding but it is a very interesting question. >> guest: i agree. i could not add whether it means the robert score or the rehnquist court, it it is just tradition may call it that. but i will say during one of the interviews of justice said he did not understand why the supreme court's who called the chief justice name, by schaede chief justice rehnquist be blamed for what that court did? [laughter] and suggested instead it be named after the president who named the last justice to the supreme court that would make this the obama accord to which i think would come as of big surprise. [laughter] >> we have time for one last question. >> share your thoughts of testimony during these proceedings if you feel he was perfectly grounded? >> i could not hear you. >> at no fee was as candid. >> i think he knew what he wanted to be when he got on the supreme court and he believes he is a minimalist judge of the empire has fallen apart i think justice kagan reacted to that very well because there was of a discussion of judging you not always call us strike but he was very candid and he will point* to decisions where he has been a minimalist judge. not all the time but he would defend the decisions were he had not been minimalist as be leaving that is what the law are required. . .