Kind of process that has a sense of fragility to it. Is that cooperation is forthcoming and how do you ensure that it is Going Forward . Thats a great question. I think the intensity of cooperation and the sense of the daytoday importance of counterterrorism feeds over time. That is human nature. I think the interesting thing about it, these financial campaigns and focusing on illicit finance is that these are enduring issues that matter to the integrity of the financial system. Money laundering laundering matter before 9 11 and it mattered more so after 9 11. It mattered and that matters even more so now. So how far do you expand these powers and whether or not reach the Tipping Point where they start to be less effective over time, either because the u. S. Has lost its predominance or the dollar has lost things in terms of courtesy. Or because we have overused it and people have stopped paying attention in these alliances have emerged. I dont think the attention has waned. I think the pressure is still there and people understand that comes from different motivations. That is in part what makes these tools also unique. With that, the book is called treasurys war the unleashing of a new era of financial warfare. Thank you all so much for coming. Thank you for the doctor and cspan2 for covering this event. Thank you, rachel. We appreciate it. [applause] [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] you are watching the tv, nonfiction authors and books every weekend on cspan2. Up next on the tv, after words with guest host janet greene. This week mark tushnet in his book balance politics in the Roberts Court is featured. In it, the harvard law professor explores the controversial decisions in the courtroom including upholding the pourable care act. This program is about one hour. Thank you so much for being here. I really enjoyed your book, in the balance. I was hoping that we could talk about the court itself. Since 2005 there has been considerable turnover. I was wondering if you could give us a thumbnail sketch of each of the new ones. Guest absolutely. The head of the court is chief Justice Roberts who was appointed by president george w. Bush. Initially nominated to replace Sandra Day Oconnor and while that nomination was pending, chief Justice Rehnquist passed away and roberts was renominated for the rehnquist position, and that meant that there had to be a different position and samuel alito was nominated for that. I think we might have even had a little bit of an overlap. They are both quite conservative coming out of the reaganbush justice department. Later, Justice Stevens and Justice Souter retired and they were replace replaced by a Justice Sotomayor, president obama proved her and appointed her. And then also elena kagan, who has been president obamas solicitor general. Host you recount in a confirmation how both Justice Roberts and Justice Kagan compared judges to umpires. But they did so in a slightly different way. Can you talk about the analogy . Guest during his hearings, chief Justice Roberts prepared an Opening Statement in which he said that the justices should be the umpires of the ballgame, just calling balls and strikes. What he meant by that comment exactly explicit about it. Was that people dont go to the balkans to see the umpires but the players and find out who wins and who loses. And so the umpires should not be the central focus. But how that came across as a statement sort of about constitutional jurisprudence that all the judges did was sit there and see whether the statute was within this strike zone or outside the strike zone. That suggested that the job of the justices was relatively mechanical, that is what the metaphor came across as. When Justice Elena kagan was questioned, she said well, yes, we dont want the justices to be the focus. We want a lot to be the focus. But when the justices make the decision, the law is not always as clear as a ball coming right down through the center of the strike zone. And there is very frequently some degree of judgment that is involved in determining whether this is prosecution were not. They have reportedly said that this is confirmation that he might have the balls and strikes metaphor a little bit better to take away the suggestion that it was just his job to be an objective observer where the strike zone was. In the introduction, you quote barack obama, who was speaking as a senator and explaining why he was voting against the confirmation of john roberts. Obama said to paraphrase about 95 of the cases, the law is pretty straightforward that precedent or rules mean that either glia or just verbal one of them pretty much the same place. But in about 5 of cases, it comes from outside the law. You had identified that ingredient is politics. What do you mean by that . I talk about law and politics in the law component is pretty straightforward. The politics component is a very complicated thing. Most of the time we talk about politics and we talk about partisan politics. Will this policy helped the Republican Party or the Democratic Party. That plays some role in what the court does, the justices are chosen by republicans or democrats. And they have these sort of inclinations or feelings come but its very rare for them to make the decision early on the basis of this advantage. Whenever i give talks in public, and i Say Something like that, somebody raises the issue and i say, sure, that is one of those cases where pure partisan politics almost certainly play a central role on both sides. But most of the time politics is a more ideological or philosophical approach over the past generation, republicans who are thinking about the constitution have developed a way of thinking about this is different from the way the democrats think about things. So when these cases that involve politics happen, they deployed these ideological structures or philosophical structures to help them think through the problems that they are dealing with. It isnt not send that these kind of politics really do play a big part in most of the important decisions. At the outset we have the process of choosing someone as a nominee. You say that democrats and republicans look for Different Things in a nominee. With republicans he said the liability is sort of the holy grail. What do you mean by the liability . Guest let me just back up to give a little bit of the framework of how i approach this. A Supreme Court vacancy, one opens up, people talk about the president president having an opportunity to leave a legacy. And the question is what exactly is that legacy. Part of it is that youre going to appoint someone who is going to be on the court for a long time well after you are gone. And you want that person to be remembered as your legacy on the court. But you also want to create a legacy for your political party. So you want to use will nomination as a way of building your partys strength. So the republicans over the last 30 years, they have played to this party and by saying that our party has been a coalition of economic conservatives and social conservatives. And for a variety of reasons we have not accomplished an enormous amount on this social conservative agenda and there is a lot of rhetoric, rhetoric is important, but as a matter of policy we havent seen it can grow all that fun and national level. But we have done well on the economic level. So what we need to do is to make sure that the social conservatives see that they are getting something. And so what they are getting a reliable judges, judges who will vote for the kinds of things that social conservatives care about. That is the goal for the Party Buildings by republican president s. It also has these longterm effects. So the legacy is for the strength of the party and a court that is going to be conservative over the long run. Host what about democrats . Guest democrats have been less concerned about constitutional jurisprudence. There are some baseline, no democrat democratic president is going to nominate a justice who the president believes would vote to restrict abortion rights. And it is very unlikely that they would nominate someone who was skeptical, deeply skeptical about affirmative action. But that whole agenda is relatively narrow compared to the social conservatives agenda. Rather what the democratic president s have done is to use the nominations as a Party Building strategy. Ruth bader ginsburg, nominated by president clinton, she was a heroine of the womens rights movement. Sonja sotomayor was the first hispanic on the Supreme Court and at a time when the democrats are increasingly trying to solidify the hispanic support for the Democratic Party. Now this Party Building strategy interacts with a lot of other things, if is it the person concerned, you might not want to use a lot of Political Capital or have a big fight over the confirmation. The Justice Breyer was a sort of save nomination, Justice Kagan doesnt have a strong Party Building characteristics, it is that other woman on the Supreme Court, but it was clear about this. One of the things you discuss is the diversity of the court in terms of ethnicity and geography and professional background. You talk a little bit about the ways that the court is diverse and what ramifications that might have for a potential choice of a new justice . At the moment the court is very unusual in a historically neat situation on a variety of dimensions. The one that jumps out historically to me is religious composition, whereas now there is not a single partisan on the Supreme Court. There are six catholics and three jews. And this is, this is literally unprecedented. Now, religious division has become much less significant politically in the u. S. Than it used to be. But from a Historical Perspective this is something that we talk about, we talk about the wasp, white anglosaxon protestants. So that is one dimension. The second dimension is the current justices are all for practical purposes, products of the mostly east coast, Justice Breyer has connections to california, four justices are from new york city. There are times in the past when president s hesitated about nominating when there was one justice from new york on the Supreme Court about whether they should nominate a second new yorker now there are four. There is certainly this complete separation of the close thinker of the country. The final item is in terms of academic background. Every justice on the court has a law degree from one of the top law schools. Obviously those law schools have dominated on the court and no one from northwestern, which is their Russell Stephens or some other is quite unusual. What i say on the book on that particular question is that its not quite the right word. But clearly i have taught at several law schools and it is clear that we give talks everywhere. It is clear that every law school has taught students who are really, really good. So you could find graduates of the schools that would be more than competent and excellent. At the same time, one of the things that is happening in the United States is the development of an academic meritocracy. Some of them cease to exist and so one of the things that we might be observing in this background is actually a triumph of this education. In terms of professional background, you point out that most most of the justices have been judges and that they dont have determine the amount of sort of real world nittygritty experience. You think it would be helpful to have more justices who spent more time in the trenches . I personally do. There are different kinds of legal experience that you can have. And it would be helpful to have justices who actually engage in this substantial criminal practice, Justice Alito and Justice Sotomayor did some of that come up both on the prosecution side. I clerked for Thurgood Marshall who had a clear practice on the defense side and someone who had criminal defense kind of experience. There is a nobrainer of civil practice and one was a Major Corporate lawyer, for example, courts now dealing with a large number of intellectual property issues and one of them issued an opinion in which he said that i do not have a clue as to the science that is going on here, i just have to trust what people are telling me. It would be nice if you had someone who had a background in science. The one real gap historically is that there are not any justices with significant experience in high levels of national politics. If you go back over history, Charles Evans hughes had been the secretary of state and earl warren had been governor of california. There were lots of justices that had a significant amount of political experience. Used to be thought valuable because lots of the things well, for two reasons. What of the things that the court does involves helping or arranging the political system. And it helps to know how does system actually works if you are going to be intervening at some particular point. In the second thing is it used to be to go with political experience that had a kind of interaction of personal ways that pushed for the compromise and accommodation that i just had this saying that to go along you have to get along. Thats what we used to do in politics. So i used to make a point of the loss that the court was experiencing in a draft of the book, which the draft was written for the 2000 elections, im sorry, the 2012 elections. I listed some potential in nominees, not included politicians as possible nominees. One of whom was, and this is i think relevant to them. The candidate was a potential ted cruz and have not been elected. And that sort of thing. That thing that is symbolic of what current politicians are like. They do not have this accommodated air. So i used to be about the idea of appointing politicians. The same is true on the democratic side. Host with a democratic president come out what you had mentioned that there are some particular groups that are clamoring for representation. Asianamericans, or maybe another africanamerican justice who would be liberal as opposed to Clarence Thomas who is conservative. What do you think will be some of the calculations that go into the next pick . Guest well, the first is the timing. At the moment it doesnt look as if it is likely that president obama will get another nomination. So we are talking about whoever it is who is elected in 2016, that could be a republican or a democrat. The second will be that the vacancy that is being filled. So if a democrat is nominated in place of justice ginsburg, transplant want to say that i have no information about her intentions to retire. We can use that as an is the o. Guest yes, she is the oldest at the moment. It will be easier for a democratic nominee to fill that position because it wont change the sort of political balance on the court. It will replace an older liberal justice with a younger liberal justice, it is significant because of the length of time that we are serving. In which she talks about Justice Scalia, who is among the oldest of the republican nominees. For the democratic nomination then. You know, that will change the composition of the court in that case. So republicans will fight. So those are just complete situations that you dont know when they are going to occur, the president will be, the new justice will be replacing. Beyond that, from the democratic point of view i think that the Party Building strategy will be as follows. I think that it would be surprising if the nominee were a democratic nominee and we are not either africanamerican or asian american. That is the next demographic aggregate that the democrats democrats would be concerned about. But its a little early. This sort of inside, this bench potential of the nominees to the Supreme Court. It is sort of a training that the lower courts has not yet had occurred. And there are a couple of reasons. It wouldnt be impossible to find a qualified nominee, but i think that is just the case. The other thing that i actually think could be learned about this, but i think that if the president nominates whether it be a democrat or republican, i think that they will think about the religious issue. I think that they will try to find a protestant and secondarily, i think that they will try to break this monopoly. That is harder to do because of the meritocracy. Those will be secondary considerations. Host talking about the liberal wing of the court and the conservative wing. In many cases, the votes do not divide so immediately. So what generally speaking are the kinds of cases that we would see an unlikely set of alliances among the justices . Guest i think the first thing to say is a point that i made earlier in the book this is a relatively small decision so we had situations in which we needed to figure this out. If we figure that the center of them in every case vote as conservatives, but two of them will take an independent view if you figure that happens in 70 or 80 of the cases and i think a quarter of the cases will line up ideologically. And lots of cases will line up in this way. But what leads to that, each justice will have some, it will have something that justice order mayor called these particular issues that they care a lot about. They will have idiosyncratic idiosyncratic views relative to their general ideological companions. So Justice Scalia is the easiest example. He is a reliable conservative and he helped with the criminal justice rights and he has a hobbyhorse about the right to confrontation. And he is someone you can actually see on the stand in the courtroom who is testifying. So when the court that the confrontation case, Justice Scalia will vote with the liberals. And each one of them probably has some similar kinds of hobbyhorses. Scalia is interested in Technical Expertise and he likes to let technical experts make decisions. It kind of leads to these decisions in which there are a partisan alignment to be seen by the outside i. Frankly going back to april when they have to make the decision at the decision but it will be before july. There is a president ial Campaign Going on. They know it will be between a rock obama and mitt romney. And ask yourself if you do a strategic calculation about anything would help the Republican Party or the Democratic Party or preserve the importance of the Supreme Court over the long run with the reputation, if you dont know who will win or not in november you just cant figure out what the strategically sensible astute thing to do would be. Actually i those who tries to run through the calculations with Justice Roberts with mitt romney you rub running with the election you just dont know. You just dont know what may help mitt romney in november. That is true even if you move away from preserving the courts reputation. Id give you woke up to say i want to be strategic i just dont know what to do. You read is well do what you think what the law says whats your view of the law is. Host it was reported that Justice Roberts changed his vote from striking down a lot to upholding it did he change his mind or that it was entirely made up . Guest i will preface this by saying i will never know what the real story is. 50 years from now there will be papers that will save what really happened. Right now all we can do is speculate based on a couple of weeks and the actual outcome. It is clear the argument was held in march. It is clear that conservatives expected it would be struck down Justice Robert circulated in a bitterly bay in which he said the statute is not justified under one provision but is under of other it is clear the other conservatives were surprised by that. So what is the basis . Says he say in march . I begin is unconstitutional as a whole and they expect the opinion to strike it down or did he say the statute violates the Commerce Clause with the constitution so we have an opinion to deal with that then you realize there is the other issue in the u. S. Not thought about that it he had not told his colleagues what his views were so they were surprised when they saw what he did on the tax issue. That is the more plausible account not that he said the whole thing is unconstitutional and every grant he did communicate a sense it was on constitutional mostly on the Commerce Clause ground then worked on the other issues. Host those particular issues that were caused how much did that make it easier for him to mediate from the other conservatives on the court . Yes. Going back to what we talked about earlier, the politics politics, does the philosophy is something the justices come to every case with jurisprudence has a welldeveloped theory about the scope of congresss power under the power to regulate. That was available with chief Justice Roberts and he deployed it in his opinion. But there was no similar background seeking about the scope of the power to tax. So he did not have the resources with his general ideology i dont want to say specifically about chief Justice Robert about what was available was a purely Party Political decision and striking down the Affordable Care act was the decision of the Republican Party. But if you are the key of jurisprudence rather than political terms and that doesnt matter and that could be a detriment to not come up with the theory that just so happens to fit with what the Republican Party wants. That happened bush against al gore and that is not good for the court. Host what did the other big cases is government controlled can you tell us the story of how the hell space came to be . Good control or get rights litigation is interesting with the orchestration over quite a long period so maybe 20 years ago when legal academics partially support from the National Rifle association started to examine the background of the Second Amendment that was quite favorable to the adm of gun rights that they had the individual right to possess their weapons so now you have a body of thought available when indication of 1986 both chief Justice Burger and bork expressed very skeptical views that guncontrol is unconstitutional and both of them are quite conservative but the body of thought developed it develops with jurisprudence there is a very complicated story that you can read it in the book but a series of Interest Groups with the tradition that goes back of Thurgood Marshall or even before that 100 years where Interest Groups try to get litigants that will push their ideological positions there is some interesting maneuvering about that with the modern states of interest and five justices except the individual rights theory that was developed over the prior generation. Host utah about the original original is some. Kim you explain what that is and how that came into play with the hell space . There is an interesting problem from my point of view intellectual about originalism. First it was proposed that it was the mets said would be from the non ward court to regionalism he began by criticizing the warren court for something about the original meeting of the constitution and started out as what the framers of the constitution intended and it turns out to that is a very difficult position to sustain for a variety of reasons. The original is some originalism was transformed to make it better. This is not a criticism of those with those positions they confronted challenges they thought about how to address the challenge and cable up with the current version of the original Public Meeting which is the various flavors but the core idea is there are words written try to figure out what a reasonably well informed person in 1789 or 1791 would have thought what those words meant and what have understood their meeting then take at and apply it to the current problem. Now for a variety of reasons i think ultimately are not successful you die a scholar in the book was different leagues and as an intellectual matter probably does not do the kind of work that conservatives hoped it would do but remains an important part of the public understanding with what the court ought to be doing. Host it seems like the problem the Historical Documents will not be that clear and what is somewhat in 1791 think about the right to bear arms . We thought maybe you could come out either way and what you said you could make it almost anything. Guest i think that is right. I rode a book about the Second Amendment that it went through the historical evidence that what they rely on and i say this in the book my own judgment is if you look at the evidence with the on by a sty i went after this for academic reasons but it is about 60 40 in favor of individual rights and interpretations of the court but when you say that did you figure out what you do under those circumstances . And it is not clear even with 6040 60 40 you have to do other theoretical work about how you interpret that to figure out what you do in that situation. That will be true either ambiguous or to said to make any competent judgment at all. Added has now developed another variant of it that says there is the original meeting that you have to follow that is a narrow range of cases that there is a construction that is different from the original meeting approaches and that covers most of what is going on at that point the original is some from the intellectual point of view has lost most of what was attractive about it in the beginning is still is important for Public Discourse and most people think that taking into account is important to every judge thinks it is important but it is not the only thing that matters. Host give it to wisdom is there a barber score has been probusiness. What is your take . The bottom line is the Roberts Court is appropriate when you look what the court is doing it becomes more complicated so i mentioned earlier it is now doing a lot of Copyright Cases those start to be the business against the Business Cases somehow business will win either a Small Company making the patent or the big Company Making it good to the general public but it is hard to fit that id to a pro business decision by the court. They are but not necessarily a probusiness. I think what you have to do is what would be the important case this and even here it gets complicated. And some cents the most important Business Case of the Roberts Court is the case of Global Warming in which the five four vote came out on the liberal side in favor of governmental regulation of curbing emissions. That looks like a loss for businesses of a very important case. I argue that it is probably less important for one elissa, the face of the opinion because the impact will work through a long regulatory process that which the outcome will be less dramatic. Host the epa is moving forward with the regulations with the emissions and it is happening. And there will be legislative responses and my understanding is most Climate Change people dont really think that epa kind of approach but most people in the field are not the best way to deal with the problem and maybe congress will intervene to get a better solution. Bad is the impact of this decision. We dont really know yet. Host and to interview with a sequestered that baby their ragged the tory scheme will unfold because it is hard for congress to do anything else . Youre absolutely right. Guest it could be substantial for business lets look at it, the business loss there are a series of procedural cases that have more or less uniform become down video harder for the unlawful actions it is for the classaction to sue a company that of balls arbitration. The most dramatic one the most dramatic that the court decided last year with arbitration in which they were upholding arbitration in circumstances where there could have well have been a violation of the antitrust laws so these are situations procedure will prevent a violation of federal law that is a good position for a business they can engage in behavior began to get away with it. Not in this and its and that it is unlawful but the procedural system is unavailable to the people who might challenge it. Host i the good of the courts least popular decisions of Citizens United you wrote president obama reelection talks about Citizens Uniteds was overstated ready that was read with some skepticism about what is your basis for that . We but there are a couple of reasons but one is from my perspective as a legal academic Citizens United itself i hate to say this relatively a matter of decision. Added self it expanded opportunities for corporate expenditures and it does not look like big publicly held corporations really do engage in independent and ditchers that they could have engaged in before Services United it clearly has a large symbolic effect and it did encourage people who might have been a holding back from to read things that might have been prohibited will then they open their wallets. But it is not clear the enormous advantage on the republican side i the glenda the fee is the Tea Party Phenomenon suggests is that independent spending actually can cause problems personally and a like the amount of money but it is not clear to me that should be regarded as a serious constitutional problem and some aspect has to be right if i care a lot about a candidate and i want to spend my entire fortune because i am rich and i see why the government should stop me from doing what i can to help the candidate out. Either stand ye dont want me to give the money to the candidate and then give it back to be but these are independent expenditures and opportunities for corruption and are less not absolute but less. So i of skeptical about the impact of Citizens United. Host the holding that corporations are people got a lot of attention they said maybe it is misplaced maybe it is not corporations but billionaires that are popping up candidates . Right. If there is a problem is money. My favorite example is something i have to be careful while praising the Koch Brothers are the billionaires that have been demonized from the left as providing an enormous amount of support for a very conservative positions and politicians. People and liberals say city since united allows the coat brothers to make their contributions to the Corporate Treasury of coke in the steve on the industrys it appears to be the case it is known as the subchapter s. But if this would it means is there is no difference between the three industries and the Koch Brothers so if they are a problem, if they are it is because they are rich not because they control a company that could make expenditures on behalf of a candidate. Host the procedure of that case was what they had an argument they called everybody back for the every argument. How the alleged you think oral arguments even matter . Sometimes the matter some but basically dont matter all that much with the Affordable Care act case the amir reaction it was the trade representative of the argument. There was nothing that he could have said as an eloquent in he would lose all of these issues. With Citizens United that says what happened was after the first argument chief Justice Roberts drafted in the opinion that would reflect the opinion on narrow grounds. He circulated it ended just would not fly. He could not get people to sign onto it. They needed to have a list to focus on the issues that trouble it is troubled the justices. Host are they conscious of their decisions . Do they care . Guest it is a complicated question. Everybody likes to be liked but they dont hate yall with everybody. They hang, with a certain circle. They are sensitive to what people in their circle care about or what they think of them. But people in those circles will be supportive no matter what. Chief Justice Roberts will not get in invitation for a while but he may get one. In a year or two. Society lawyers dont like what he did with the Affordable Care act but those from other places will be deferential that is pretty much true of all. But not to be crude about this but they cannot stop five of them from doing that they feat there is no way to deal with that. S