Important. The fact that that has never been there just shows that aboute the disagreements what the correct answer to these thetions is, about interpretation of the appointments clause, they have worked it out. Now they found a way of raising it that they could not. This is a case you will see. Jefferson said one thing. Handle may have said another hamilton said another thing. Several president s have said one thing. Congress wrote a report in 1860 saying the opposite. When the president from it was from a different party, you got something different. People switch sides. The president may fill vacancies that may happen during the recess of the senate. What does that mean . What does they have mean . There are al qaeda of complexitys. All kinds of complexities. But then it could not be we have to decide it. When you are looking at the constitution and trying to answer a question like this, hes are questions that have divided the lower courts and public opinion. The purpose ofde a provision of the constitution, which you will have to do in this recess appointment case, how do you know what the authors, the Founding Fathers had in mind . Good question. Let me show you something, which is true of the constitution and also of the origin a the statute. How do those words apply . How should they be interpreted . How do we apply them in this case are that . I can give you an example. Nothing to do with law i discovered in france. There was a man, a High School Teacher on a train. 20was carrying in a basket live snails. He taught biology. He was going to show them to the class. This was not his lunch avoided. ,he conductor said you have to buy a ticket for the stale. Look what this tariff said. No one may bring animals on a train unless there is a they are in a basket. Then enough to buy ticket. He it was talking about cats and dogs. Not snails. Is this nail an animal . Snail and animal . Then you have to buy a ticket. Whether high or low details or not, virtually every judge always uses the same basic tools to try to find the answer to a difficult question. You read the text. If it says animal, one thing we is it is not an caret. Caret is not an animal. The text puts limits. You look to history. Where did this phrase come from . Thie history of the statute . Third, you look at the tradition. Of habeas corpus. You look at the president. There will be earlier cases that have some relevance. Fifth, you look at the person. Somebody had an objective and putting that word in the statute. It said animal for some reason. Without something to do insurance accidents what was the purpose. And you look at the consequences of dividing deciding one way or the other. If you were dealing with the First Amendment, that is probably consequences but speech. With the fourth amendment, consequences a deal with privacy. Judges use those six tools. But judges very and emphasize very in the emphasis they give one than the other. I give more weight than Justice Scalia to the purpose and consequence. The historynt into and tradition. He probably gives more weight to the language. Tradition. President. This precedent. I am more likely to find those ambiguous. People will look look at Second Amendment. With guns. I could not have thought of the basic purpose without looking to history. When we got into the detailed argument in the case, as we were on different sides, he was probably willing to look at more history than i am willing to. This is the decision in 2008, for the first time in our history. I think the Supreme Court said what the Second Amendment means what it talks about rights. You talk about history. They are divided 524. They do not always provide the answer. Court talkges on our of the Second Amendment, which says a will regulated militia being necessary for the security of a free state, the right of people to keep and bear arms shall not be infringed. Read the first part. Here is what it is about. N they cast past the, when theyt constitution,. Raisedthe arguments they was, we have just bought a war of independence. State militia were part of the army. The first article to the constitution says that congress can call up and regulate the state militias. How do we know that congress thet do it and destroy state militias . Fear not, said madison and hamilton. A bill of rights, that will stop congress from them up. That is what this is about. We have pretty good argument. Residentreat historic and very little value. The problem of state militias does not exist today. Five people said, it to the right of the people to keep and bear arms. That should be interpreted in light of the english civil wars. Some decided that was how to interpret it. We are looking at history in both cases. How you apply it, you have to apply it in light of purposes and will be the practical result. And what the content of that Second Amendment is is very open. It has not been decided by our courts. Sometimes the Supreme Court has to this fill in the blanks. Had thatthe case they congressody elected to has to be the u. S. Citizen, 25 years old, and live in the state of candid see. The constitution does not say anything about term limits. How do you decide a case like that mr. Mark that is a terrific question. I thought, is term limits constitutional . What look at the text. Lets look at the text. Can arkansas say its members of congress can serve two terms are for terms . Lets look at the text. You have to be an american citizen and 25 years old. The citizen of the state from which you come. It doesnt say these are the only altercations. Can arkansas at another one . Lets look at what the founders said. Said one thing, medicine said another. Madison said another. At consequences, purposes. Cant you add qualifications . They at a property qualification. Add a property qualification. What about not being a lunatic . Clearly not. [laughter] easilylearly pretty balanced. Ultimately, i think it came down to the 10th amendment reserves powers of the state. How strongly should that be interpreted . These are state officials. A member of congress is a state official. But wait, he is a federal official. Should we have federal officials with different altercations . Well, he is a state official. How much weight you put on that 10th amendment . How do you see the interaction . There is no real answer to a lot of these questions. We are human. These questions are very close. , there is no obviously correct answer. It is awfully tended to say there is good and bad. Right and wrong. That is not how it looks. In my profession, more likely to save liberal and conservative. How do you avoid deciding a case based on what you how you would like it to come out . Saying, this is what i personally think it ought to be . Never get to do what i want. This is my own feeling. [laughter] that is like my own failing. There is much of that feeling. To ask you, what controls these close questions . I know what most of you will say. Politics. Our juniorthe court volatility varsity politicians. I say, that is wrong. The reason, why do we have the power to make a decision that with the elected branches of government did violates the constitution . Why do we have that power . Some think John Marshall made it up. If you look at the history, the vast majority of people in the convention thought judges would have that power. Why . Hamilton explains it in federalist 56. He says, we have written a beautiful document. Compact, not too many words. It has lasted a long time. Great work. Says ifalist 56, he this is a beautiful document if somebody does not have the power to say when the branches of government have gone too far, fences, rules, boundaries, nobody has the power to say when the others have gone too far. Lets hang it up in the museum. People can admire it. Put it in the smithsonian. They didnt say that because the smithsonian did not exist. Somebody has to have this power. Who . The president . Too far, too much power. My god he can do almost anything if he has that power. Congress . Why not congress . It is a democracy. He writes, in effect, congress will do it all right. And they will do it well. But only if the answer they come up with is popular. If they did not know popularity, they would not be where they are. The samedocument gives rights to the least popular person as it does to the most popular. To theld not give it people who are persuaded by what is popular. Who . The judges. Why for summer nobody knows them. They are great gray. It is something of a legal job. They will not be moved by popularity. They do not have to be elected. They are weak. They dont have the power of the purse or the sword. They will be careful. That is basically what he says in federalist 56. If we want to decide politically, we are fine in the face of what hamilton wants. Dredo read trench. Scott, perhaps the worst day in the history of the court, the only explanation is that he thought from a political perspective he would prevent a civil war. But he helped create the civil war. And prevented. He didnt prevent it. Judges are terrible politicians. They may think they know politics. Job. Nt the this, which in will not take. Decide ink people real politics is, where are the votes . Who is going to get elected . What about bush v gore . It is not just real politics. You didnt say politics. You mean ideology. A marxist . A maoist troublemaker . And adam smith Free Enterprise are . Never. Say but if i catch myself, i know that is wrong. People try not to do it dur. I am who i am. I grew up and sent cisco i went to a public house cool a public high school. Im from california. The New York Times has the dialect. Says, you try it. It touching where you are from. Tells you where you are from. It picked cities and they were fresno and bakersfield. I have the background i have. By the time we reach a certain age, have views about our profession. Where does law fit in . Fords law about . What is law about . Openyou get to the big constitutional questions, that plays a role. What is the freedom of speech . 14th amendment . Equal protections of the laws . No deprivation of life, liberty, or property . Those words dont explain themselves. By the time they reached the Supreme Court, there are good arguments on both sides. Backgroundersons and how he sees the law or how butr she has developed then it could not be avoided and that is why these terms last a long time. Different president s with different views of point different people. Any president that thinks that he is going to get the decisions he wants is wrong. Teddy roosevelt appointed wendell holmes. He ended up deciding in the wrong way in an antitrust case. They may have more luck at a deep philosophical level. Even then they do not always get the one they want. San francisco, i was born and grew up in. I lived in cambridge, massachusetts an awful lot of times. I have seen a lot of disagreements, but i did not know what one was until i came here. I wish those people agree with me more. Over time, i thought, it is a big country. There are a lot of different points of view. We have 310 Million People. They think every race, religion, point of view possible. Well, it is not so bad that you have courts with it and points of view, based at that level of philosophic philosophy or different basic approaches. It is ok. And i am not always in the minority. It shifts a lot. When i am, it is a miraculous thing. I see it every day. There is a miraculous thing still that these 310 Million People have decided to resolve their differences under the law. It was not always that way. It only took us a few horrors like the civil war, slavery, 80 years of legal segregation. The country has not always been on a great track. But with the ups and downs, this rule of law has arrived, and it is a tremendous advantage to our country. I talked to student audiences. I like talking to student audiences, as you can see. I said, the remarkable thing about bush v. Gore, which often comes up, i heard senator reid say, the remarkable thing never is remarked upon. Despite tremendous disagreement, very important case, affects a lot of people, and this important matter decided by unelected authorities, and by the way, judges are human. And they are sometimes wrong. I thought they were in that case. I suspect senator reid thought so, too. Not popular. At least 50 thought it was wrong. Maybe more. Nonetheless, they followed it. No guns. No riots in the street. Fabulous. I know my studio audience will say, i am sure 20 of you are thinking, too bad there were not riots. Really . Turn on the Television Set and see how countries are when they resolve their problems that way. Let me ask you one more before we invite questions from the students. There was a recent study that showed only 50 of americans could identify john roberts as chief justice, more than two thirds could name a judge on american idol. You have said the constitutions democracy assumes that we understand how the Government Works. This audience is clearly an exception, but are you worried that schools no longer teach civics and government as much as they once did and we are building a population that does not understand how the Government Works . Yes. I follow sandra oconnor, who is always talking about this, as is justice kennedy. We talk about it all the time. Ask anyone in public life, members of congress. They would not be in public life if, at some level, they thought the government was important. I do not have to tell you that, because you are here. But of course, generally, i cannot tell people your age what to do. I cannot. They would not do it anyway. I cannot tell them what to do. I hope they will find someone to love, i hope that they have a career that they can practice, and i hope they will devote some of their life to civic affairs, which at any Level Library commissioner many Different Levels to participate in political life. Of course, i believe that strongly. I cannot tell you what to do but i have become more familiar with this document, and i can fill you, if you do not, the document will not work. It assumes a basic knowledge and understanding of how the Government Works. It assumes knowledge of the fact that the document itself we are looked the border patrol. It creates borders, but the decisions of how your community, state, how the nation will work, what kind of country, city, what kind of town you want, it leads to you, the democratic process. We cannot decide those things. Of course you have to participate. I found a good quotation that i will use some time. He was talking about athens, it century bc. In a funeral oration he says why athens is so great. Democracy, etc. Very few people participate but still better a few than none. He says, what do we say in athens about a man who does not participate in public life . We do not say there is a man who mind his own business. We say there is a man that has no business here. That is what the document said. Very good. We have a long line of questions from both sides of the room. We will start here. John graves, harvard extension. I was going to ask you first, if you have ever presided over a case that you knew you got it wrong. I think you alluded to the fact that that was possible. Rather, i would ask, have you ever voted against your conscience to uphold the law . If you really have a tremendously strong conscientious objective, and you could not do it, you should not take the job. What i was confirmed, i was asked the question, how do you feel about the Death Penalty . I said if i was against it so much on moral grounds that i could not read myself to follow what the law is, at that time 20 years ago, that i should not take this job. So i would like the job and i hope you will confirm me. I do not think it is so terrible that i could not bring myself to vote against. That is far as i went. When you say a matter of conscience, i voted in many cases where i would have far preferred the result to be the opposite. I voted in many cases where i would say, i cannot believe this, but the mixture of morale and he and other things in that, i do not separate out. The law is supposed to work on moral ground. The criminal is supposed to punish those people who deserve to be punished. It does not always work out. Then you have to take into account the need to have laws that are not perfect and people not being perfect. Jordan, university of san diego. We briefly touched upon term limits. I wonder if you thought there were any negative aspects to lifetime appointment for Supreme Court justices . Yes, there are. As far as i can see, it would be just as good, and may be preferable, from an individual judges point of view, if it were longterm. 18 years. The term would have to be long. Would have to be long. When you do not want from the Public Interest review point of view is, what is my next job . Not a good idea. I would actually prefer if it were a fairly lengthy term of years for a lot of reasons. Nonetheless, it is not. The constitution says term for good behavior. Thank you. Quinnipiac. Given the recent surge of social media covering trials and events, is there any thought to opening up Supreme Court arguments to the public via media . We are a conservative law in that respect, small c. You say, why are you so conservative . After all, the written press is there, why not television . The concerns are, first of all, it is a symbol of our court. If we let it in, it may be in all criminal cases. That is a problem. People testify where they will be seen by their neighbors, jurors, etc. Another problem is people will think the oral argument is what it is about. 99 is really briefs. And then another problem. We are deciding people relate to people they know more than those they do not know. They relate to people they see more than those they read about. There will be a good guy and a bad guy. That is risky for the court because we are deciding things for the 310 Million People who are not in that courtroom. That is the rule of law. And then of course, as i am honest about it, people worry about the demonizing or the angelizing of people you see. We do not know. My own answer to this is experience will build up. I suspect eventually it will be there. It is a question of when. Hofstra university. Could you speak more about what led to th